Public Law II: Jan 13 2006 The Road to the Charter

1. 1968: Trudeau became PM. He wanted: stronger federation patriation of constitution Const. Charter of Rights better-protected language and mobility rights 1970: Molgate-MacGuigan Committee found strong support for a const. Charter 1971: Victoria Charter agreement for Ch and pat. opposed in the end by Quebec and Alberta 1976: PQ elected in Quebec 1980: Referendum Trudeau promised renewed federalism 1981: negotiations; no agreement “unilateral” patriation attempt reference to 3 Prov Cts of Appeal; appeal to SCC SCC Ruling: legal, but breaks convention Nov. 1981 const conference compromise Public Law II: Jan 13 2006The Road to the Charter

2. November 1981 compromise • Patriation of constitution with the amending formula favoured by most of the premiers (the 7-50 formula), but which Trudeau had opposed • acceptance of a constitutional Charter of Rights which would contain a “notwithstanding” (non obstante) clause • Trudeau insisted that the notwithstanding clause not cover language rights, minority language education rights, or mobility rights; notwithstanding clause would have a 5-year limit

3. 1. Limitations clause 2. Fundamental freedoms: conscience and religion thought, belief, opinion & expression press and other media peaceful assembly association 3-5: Democratic rights: citizens right to vote and run for office 5 yr limit to life of H of C or prov. Assembly except during war etc. if supported by 2/3 vote sitting of Parliament, and prov. Legislatures, at least every 12 months The Charter of Rightsbecame law April, 1982

4. 6. Mobility rights 1. to enter, remain, leave 2. to move within Can. and pursue livelihood, subject to laws that don’t discriminate and residency provisions, and restrictions in provinces of high unemployment 7-14 Legal rights: eveything in Bill plus freedom from unreasonable search or seizure (s. 8) trial within reas time jury trial if liable to 5 years imprisonment no retroactive offences no double jeopardy least punishment if law varied Mobility and Legal Rights

5. 15 Equality before and under the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age, mental or physical disability Affirmative action programmes OK 16-22: Language supplements S. 133 of CA, 1867, which is still in effect applies to Canada (fed) and New Brunswick only, though other prov’s can opt in Eng & Fr “official langs” Debates, statutes, Hansard in 2 langs Eng or Fr can be used in courts right to receive services or communicate in English or French with gov’t Equality and Language

6. 23: Minority lang ed citizens whose first lang is Eng or Fr, or who attended prim school in Eng or Fr, have right to educate children in that lang. Siblings rights applies where numbers warrant 24: remedies (1) “...such remedy as the court considers appropriate” (2) evidence may be excluded if its collection violated a right, if admitting it “would bring the administration of justice into disrepute” Minority Lang Education, remedies

7. 25: aboriginal and treaty rights not reduced by charter, including rights under Royal Proclamation of 1763, and land claims agreements 26: other existing rights not reduced by Charter 27: multicultural heritage of Canadians to be kept in mind when interpreting the charter 28: equal guarantee to males and females (this section isn’t covered by the “notwithstanding” clause) General

8. 29: denominational school rights in CA, 1867 not reduced 30: Territories included, now and later 31: Charter does not extend legislative powers; it is a limit 32: Application to Parl, legislatures, gov’ts (& 3 year delay for s. 15) 33: a notwithstanding clause can be inserted into legis. re ss. 2 or 7-15; 5 year limit; can be renewed 34: ss. 1-34 of CA, 1982 cited as the Charter of Rights and Freedoms General (continued)

9. Impugned provision: order of a trial judge to force Nova Scotia to provide secondary schools in the French language, and report on its progress. Nova Scotia CA: S. 24 doesn’t give judges the power to supervise implementation SCC: 5-4 decision: upheld the authority of the trial judge under S. 24(2) Iacobucci & Arbour for majority of 5: if delay is tolerated, govt’s can avoid Charter obligations ordering gov’t to report on progress is a “creative blending of remedies,”and leaves gov’t with discretion as to how to build & provide schools, and their nature Lebel & Deschamps for minority of 4: violates separation of powers reporting order too vague judges shouldn’t meddle with administration a deadline for construction, and threat of a contempt order, is enough Doucet-Boudreau v. Nova Scotia, 2003: example of application of Ss. 23 & 24

10. The Charter undermines legislative supremacy & therefore democracy Mandel: elected legislators are closer to the needs of the poor and oppressed. Judges are business-oriented. No Charter decision has/will benefit the disadvantaged Morton-Knopff: Judges may be “captured” by special interest groups, mostly on the left. This subverts democracy. Charter erodes participatory democracy. Human rights can only be protected by the vigilance of citizens Cost of litigation compared to the political process Lavigne case: NCC spent $500,000; unions $400,000 + OFVAS case: why didn’t artists use political process to change Ont censorship law? Didn’t know how. But think of cost of lobbyists The Charter and Its Critics

11. Charter litigation focuses attention on cases that happen to get to court, not necessarily most imp issues for society (Dean Monahan, Osgoode Hall Law School). Cts should interpret Ch to promote democracy Courts are inappropriate for making policy on human rights Stare decisis is backwards looking, compared with the possibility of forward-looking policy formation processes in public service/legislature eg. Appropriate procedure for determination of refugee cases Schachter case (changes to parental leave policy) Adversary system gov’t lawyers argue for a narrow interpretation of Charter, whether or not this is gov’t policy courts rely on arguments from counsel. Sometimes, no section 1 arguments Do judges get a complete analysis of the issues? Charter Critics (2)

12. Backgrounds of judges older than average adult disproportionately married with children predominantly male New Canadians and Aboriginals under-represented on bench most from business or professional family tend to be successful appointment process for Prov Courts and prov. Superior courts improving. Elevation procedure, and SCC secretive Similar problems with lack of representation in legal profession Why do we tend to trust judges more than elected politicians? Was the Charter worth the upheaval it took to get it? Will revisit this question last week of class Charter critics (3)

13. Judges are supposed to decide based on principle, and avoid policy. Hard to separate neatly Judges tend to be conservative on social and economic questions Judges tend to be “active” to support interests of business and capital, and “restrained” in relation to advancing the cause of the disadvantaged American precedents tend to support the advantaged Our legal system assumes all litigants are equal in ability to defend positions. This is why U.S. courts are reluctant to find affirmative action programs constitutional Charter is supposed to defend the socially weak against majority rule. But the socially strong have more to gain Elected govts can act to advance the cause of the disadvantaged. Charter allows them to avoid some issues. Michael Mandel & the Legalization of Politics

14. Agree with Mandel that Charter allows legislatures to pass difficult issues to courts Charter is a “two edged sword” -- can slash to the right or the left, depending on the judges Do we want judges to be the “official public philosopher?” Should judges be “non-interpretivists” (will of framers -- a straight jacket) or “non-interpretivists” (creative, but perhaps against democracy) The Charter Revolution (1999): groups with axes to grind have used Charter to subvert democratic process feminist groups academics special interest groups (eg. Canadian Civil Liberties Assoc, gay and lesbian organizations, the gun lobby, NCC) groups representing “Charter” Canadians (the handicapped, seniors, new Canadians, Aboriginals) Knopff & Morton: Charter politics

15. Christopher Manfredi s. 33 makes Charter more democratic s. 33 became unpopular because of signs case Alan Cairns Charter has empowered “Charter Canadians” Peter Russell: Charter is here to stay, so how can we make sure it works well? Judicial appointment better judicial training My view: basic principle behind democracy is mutual respect. Mutual respect leads to: democratic institutions respect for minority rights rule of law respect for freedom respect for integrity What is important is how well courts perform discretionary functions, not whether they have discretion. Do judicial decisions promote mutual respect? Other Charter commentators