March 24, 2006: Charter Critics Revisited

1. March 24, 2006:Charter Critics Revisited • Today • Review arguments of Charter critics introduced in January: Mandel (left); Morton-Knopff (right), as reviewed in Sigurdson article • Hogg-Bushell article on Charter dialogue • Final Appeal book (Greene et al) • Review of some leading Charter cases to assess these arguments • Mock Trials, Groups 5 – 9 from 4 to 5:30 p.m. in Stedman D, Accolade West (3 groups) and TEL. • Don’t forget: fill out the on-line course evaluations at http://courseevaluations.yorku.ca

2. Review of Charter critics: On the left: Michael Mandel, Joel Bakan, Andrew Petter, Alan Hutchison: Charter is a tool for the advancement of the private interests of corporations, professionals, and other privileged groups at the expense of socially and economically disadvantaged groups. On the right: F.L. Morton, Rainer Knopff Charter is used for “social engineering” by left-wing groups Too much emphasis on social equality, not enough on individual liberty “court party” activists capture Charter litigation Richard Sigurdson: Since 1982, most criticism of Charter has come from academics, not politicians, media, lawyers, leaders of interest groups, ordinary Canadians. A few exceptions: Alan Blakeney, former NDP premier of Sask. Has Ch blocked progressive social leg? (rape shield, tob ad) Sterling Lyon, former PC premier of Man. Has Ch blocked cons initiatives? (Vriend, MvH, Winn Ch & Fam Ser, Zundel, Singh) Mulroney: crit only of S. 33. Sigurdson: Claims of academics on both left and right highly exaggerated. Analysis is made to fit ideological perspectives. “Charterphobes.” Charter Critics Revisited

3. Argument: in most cases where the courts have struck down legislation under the Charter, the appropriate legislature has re-enacted the legislation while accommodating human rights. They refer to this as a “dialogue.” Four processes of “dialogue” Section 33: Ford case and aftermath Section 1: eg. RJR Macdonald case. Parliament re-enacted the legislation prohibiting “lifestyle” advertising and adv. directed towards children, and restricting advertising to informational and differentiating brand preferences. Issues dealing with Charter sections with qualifications (ss. 7, 8, 9 & 12): 7: “fundamental justice” 8: “unreasonable” seach & s. 9: “arbitrary” detention 12: “cruel and unusual” punishment Eg. Hunter v. Southam case of 1984: Comb. Inv. Act immediately amended to comply with court’s ruling on qualification. S. 15: broad wording of S. 15 can allow governments to achieve objectives while respecting court’s interpretation of equality. Eg. reaction to Thibaudeau or Schachter. Hogg & Bushell on “Charter Dialogue”

4. Some situations where dialogue can’t occur: 1. Objective of legislation is unconstitutional – eg. Quebec Protestant School Boards case, or religious objective of Lord’s Day Act. 2. A stalemate in Parliament or a legislature, such as after Morgentaler. 65 federal laws had been struck down partly or entirely prior to the study (late 1990s). 80% had been revised and re-enacted. In 75% of these cases, the action came within two years. Conclusion: the Charter hasn’t really hampered legislative policy-making very much. F.L. Morton: the process is more of a monologue than a dialogue. The “oracular” nature of courts does not facilitate “dialogue.” Janet Hiebert: Dialogue can occur, as in the rape shield cases, where Parliament or a legislature has the will to act. Gregory Hein: Charter promotes “dialogue” between courts and disadvantaged groups. Between 1988 and 1998, 819 interest groups were parties to Charter cases, or intervened in SCC. 468 corporate, 77 aboriginal, 80 “charter Canadians.” Ian Brodie disagrees. Charter dialogue, cont’d

5. Personal interviews were conducted with 101 of 125 appellate court judges in Canada, including 8 SCC judges (1991-1994) Most judges filled out questionnaires about their backgrounds Data collected from 6,000 cases moving from trial to appeal in all provinces, and Federal Court of Appeal (~200 variables per case) There are four factors that determine the outcome of appellate cases: the law, judicial discretion, procedures of appeal courts, relations of judges on panels. The law: already analyzed. Judicial discretion (personal values of judges) Judges have always exercised discretion, and not just with regard to “hard” cases. The law can never be a perfect expression of the “will of the people.” How do appeal judges decide between opposing precedents (eg. POGG)? A third: higher authority, recentness of precedent Another third: admiration for j writing decision; size of panel, etc Final third: choose most “just” When would they depart from SCC precedent? 1: never Distinguish bad law occasionally A quarter: don’t follow precedent if it results in injustice. Final Appeal (1998)(book by Greene, Baar, McCormick, Szablowski & Thomas)

6. Because judges place such emphasis on their views of “justice,” we need more appropriate procedures for judicial appointment, esp. for SCC Procedures developed by appeal courts impact outcomes Every appeal court has different procedures, depending on history and leadership of CJs Alberta Ct of Appeal: ensures knowledge of appeal process available to incarcerated prisoners. Thus, AB has 2nd-highest cr ap caseload experimented with hearing leave and substantive ap together uses ad hoc judges from trial ct for 2/3 of sent aps and 8% of conv aps How do app cts handle problem of diff panels coming to different concls about same issues of law? “Shop talk” over lunch/coffee But Que & AB: split courts, so circulate draft dec’s to all js. Some cts see this as violating natural justice How are panels stuck? MB – random. ONT: always have an expert on panel; gender balance Senior j presides, but seniority determined differently AB: “paperless appeal” Sask and Que: designate a j in advance to write dec. Que: des. one judge to read everything. Reserved decisions: BC: 1/8 crim reserved; NB: 80%. Av: 25%. Issue: selection of CJ. Final Appeal (2)

7. Interpersonal judicial relations on panels To what extent do judges on panels try to persuade other judges of their position? Most don’t think it’s wrong to try to persuade other judges; most are against unnecessary dissenting, & sep conconcurring decisions. Some judges don’t work well together, and on some courts CJ doesn’t put them on panels together. How open are judges to listening to the views of their fellow judges? Should they be? Judicial activism & democracy Because judges must always exercise some discretion, we should attempt to ensure that judicial selection results in judges likely to promote democratic values. Judges are likely to be activist in this current period because they perceive elected politicians shirking responsibility Best way to tackle excess judicial activism is to ensure that both elected politicians and public servants have a better understanding of democracy and human rights, and are more likely therefore to make decisions that do not require judicial intervention. Final Appeal (3)

8. To what extent has the Charter promoted the democratic values of inclusiveness and participation? Inclusiveness: Singh (1985): refugee applicants have a right to a fair hearing. Andrews (1989): recent immigrants can become lawyers more quickly than in the past. Schachter (1992): fathers have a right to be included in parental leave legislation. Rodrigues (1993): promotes right to live of the severely disabled. Eldridge (1997): deaf have a right to interpreters in health serviced. Sauvé (2002): prisoners have a right to vote. Charter has resulted in removal of barriers in voting for mentally handicapped, students; legislation to limit election spending (including 3rd party) upheld. Impact of Charter

9. “Duff Doctrine” adopted by majority of SCC in 1987 in OPSEU case Morgentaler (1988): struck down abortion legislation because of cumbersome procedures. Has this promoted greater participation in Canadian society by women, or inadvertently restricted it (Gavigan)? RJR‑MacDonald (1995): tobacco advertising legislation struck down. Too anti-majoritarian, or sensible defence against too much gov’t intervention? Mills (1999): SCC defers to Parliament’s balance between a fair trial and right to privacy. Participation

10. Big M (1985): inclusiveness of non-mainstream religious groups promoted. Edwards (1986): supported legislature’s ability to devise secular holiday Keegstra [1990]: support for hate speech law promoted inclusiveness for vulnerable groups, and upheld Parl’s legislation. Zundel [1992]: striking down “spreading false news” promoted inclusiveness even for groups most of us despise. Butler [1992]: “community standards” test for pronography supports participation. Prohibiting sex/violence promotes incusiveness of vulnerable groups Sharpe [2001]: Even those we despise don’t deserve to be subjected to over-broad legislation. Both inclusiveness & participation

11. Symes [1993] and Thibaudeau [1995]: did not promote inclusiveness for women, but supported Parliament’s judgment about taxation systems affecting women. re Secession of Quebec, [1998]: promoted participation through mandating a negotiation process. Deferred to political process re definition of “clear question” and “clear majority.” Other cases to be discussed next week, along with final review of course. Both inclusiveness & participation (2)