Juridics: Canada: Prime Minister breaks precedent, honours Canadian Charter of R+ts, while Lib-dominated law writers and judiciary elite self-praise

Canadian media published an orgy of self-praise from an array of lawyers, law journalists, and judiciary elites on the occasion of the 25th Anniversary of the Canadian Charter of R+ts and Freedoms (Apr17,2k7). Meanwhile, Prime Minister Stephen Harper laid low, disagreeing with at least two major courses of judgment chosen by the Supreme Court and lesser jurisdictions, pathways to injustice that arbitarily read into the Charter the elite crowd's own fanciful low-calibre decisions that had emanated from its monocultural philosophy of law, representing an uncritical but dominant worldview in that field. When the hullabaloo of self-praise for monominded Charter jurisprudence and the accompanying hen-pecking at Harper by politicos and press had subsided, the Prime Minister made his move to break precedent and establish a federal Canadian Museum of Human R+ts in Winnipeg, Manitoba, by covering the operating costs year by year, as the Libs had failed to do year by year when they were in power.

Also, the Lib policy of funding only Museums in Ottawa, the national capital city, killed Winnipeg's chances for many years. The Feds now will also pay part of the construction costs to get the Museum functioniing by 2010-2011. The operating costs will include transportation of 20,000 schoool children from other locations in Canada.

The new institution, brain-child of Lib contributor Izzy Asper (now deceased) who funded the concept and was strongly supported by Manitoba Premier Gary Doer and the City of Winnipeg (which will finance building expenses by $40 million and $20 million respectively, is bound to foster a more critical law-history and philosophizing of law plurally in Canada than the present practioners of boosterism for the seriously-flawed r+ts decision-makers, could ever produce. Here's an overview of some CLN sources:

From Canadian Lawyer, Jim Middlemiss contributes "Charter angst" (Jan4,2k7). Editor, Canadian Lawyer.

Canada has now had a quarter-century of living under a Constitutional democracy governed by an entrenched Charter of Rights and Freedoms. After 25 years, the groundwork has been laid, but the real fight over rights and freedoms has just begun.

The Criminal Code aside, no single piece of legislation has impacted the practice of law like the Constitution Act,T 1982, which introduced the Canadian Charter of Rights and Freedoms. But the Canadian Charter of Rights has done more than that — much more. In 25 short years, it has changed the face of the nation.

On April 17, 1982, with the stroke of a pen then prime minister Pierre Elliott Trudeau and the Queen repatriated the Constitution and entrenched the Charter as the supreme law of the land. It changed the nature of our judicial system and ushered Canada into the forefront of constitutional change and human rights law, giving rights the teeth that the [older] Canadian Bill of Rights couldn’t [when Canada was still a juridical colony - L].

This month Canadians celebrate the Charter, which has been studied as a model for nations around the world. ...

If it was change people wanted, that’s certainly what they got. During a quarter-decade — a blink in the continuum of time — Canada’s Supreme Court has been called on to interpret the Charter on everything from same-sex marriage to Sunday shopping, abortion, private health care, and criminal law issues. The Charter has left virtually no policy stone unturned, and dug right at the heart of the values, principles, and social policies that drive this nation.

“It’s definitely shaped society,” says Eugene Meehan, an Ottawa litigator at Lang Michener LLP who practises before the Supreme Court. ... ” ... [But don't get the idea that the Charter is atheist.] Meehan, for example, notes that the Charter’s preamble says it was founded upon the supremacy of God and the rule of law — words that have yet to be interpreted. Just whose God is not clear. ...

From Law Times, by Eddie Goldenburg "People power instrumental in new Charter" (Apr9,2k7). A partner at Stikeman Elliott LLP. Mr Greenburg was a constitutional advisor to the minister of justice from 1980 to 1982, and from 1993 to 2003 was senior policy advisor to then prime minister Jean Chrétien, and in 2003 was chief of staff to the prime minister.

From September 1980 to February 1981, we found that Canadians saw through the political process arguments of elites, who at the time were focussing their attention on the issue of unilateralism rather than on substance. Canadians did not want a weak Charter.

Aboriginal Canadians, women’s groups, representatives of people with disabilities, survivors of Japanese-Canadian Second World War relocation camps, members of multicultural groups, and many others made powerful and often emotional representations that resulted in a strong draft of the Charter that emerged from the committee, and which Trudeau eventually accepted.

One of the most important clauses that came from the committee hearings became s. 15 or the “equality” section of the current Charter.

The constitutional deal of 1981 was therefore made possible not only because of the negotiating skills of Trudeau, Jean Chrétien, Roy McMurtry, Roy Romanow, Bill Davis, and Peter Lougheed during the first ministers meeting of November 1981. It was possible because the Canadian public was ready and wanted a Charter of Rights and Freedoms.

While the ultimate constitutional agreement required the insertion of the famous “notwithstanding clause,” the massive support of Canadians for an entrenched Charter that was so evident in the early 1980s has remained so strong that no government today would risk the electoral consequences that the use of the notwithstanding clause would bring. The clause itself is a victim of the popularity of the Charter with Canadians.

From Law Times, by Don Stuart "Criminal justice is better balanced under the Charter" (Apr9,2k7). Stuart is a criminal law professor at Queen’s University Faculty of Law

Our criminal justice system is no longer just about whether guilt has been proved. Courts also insist on maintaining fundamental Charter standards of fairness respecting policing, prosecution, trials, sentencing, and release from custody.

The judicial assertion of entrenched Charter standards since 1982 has constituted the only real check against the lure of law-and-order politics by politicians of all stripes and the consequent unremittingly legislative trend to toughen the criminal law. There are no votes in being soft on crime. Politicians fall over each other to be tough even though criminologists have made it very clear that toughening penalties in the United States and elsewhere has had no effect on reducing crime.

The Charter of Rights and Freedoms has helped ensure that we have a balanced criminal justice system of which Canadians can be proud. The Charter protects minority rights against the tyranny of the majority. This includes rights of those accused of crimes, which tend to be unpopular until the moment we ourselves get charged.

Especially through the work of the Supreme Court of Canada, important and minimum standards have been put in place. Accused cannot be punished without a finding of fault. This is even so for most provincial offences. An accused can no longer be sent to jail for life under constructive murder provisions under which a killing during the commission of certain listed crimes was automatically murder even though the killing was accidental or even by someone other than the accused. There is no evidence that this has affected the murder.

Can you imagine a minister of justice ever saying it would be just to be softer on murderers? ...

From Law Times, by Lorraine Weinrib "Second Opinion: the Charter's next quarter-century" (Apr9,2k7). Weinrib is a professor at the Faculty of Law, University of Toronto and the regular Law Times columnist on constitutional affairs.

It is difficult to imagine our legal system without the Charter. It has reconstructed the working of courts, legislatures, and the executive.

It has transformed the content of our laws, altered our election processes, reconfigured basic features of our educational institutions, and restructured many features of our daily lives. It shapes public deliberation on the widest array of issues.

The early Charter challenges brought forward “patently unjust laws,” in the words of my colleague, Michael Code. Parliament had neglected much needed reforms in criminal law. All legislatures had failed to respond to the increasing diversity and secularization of Canadian society. The courts had repudiated the Canadian Bill of Rights.

The Supreme Court’s early case law was remarkable, but perhaps the cases were too easy. The court could lay down its methodology in clear and forceful terms.
Government departments and legislatures learned how to Charter-proof. An era of better law making arose. The clear and forceful approaches of the first methodological formulations have now been contextualized. The court is more deferential to laws and practices that our political representatives have deemed consistent with the Charter. ...

Many new issues seem poised for litigation. My colleague, Sujit Choudhry, anticipates litigation working out questions based on minority identity. Such cases might call for the determination of the precise accommodations available to religious minorities, both groups and their members. In addition, we can anticipate cases addressing charges of state discrimination based on race or national or ethnic origin, e.g., racial profiling. The heavier weighting of rural votes against more diverse city voters also raises Charter concerns. ...

Oddly enough, the likelihood of a steady stream of Charter cases may depend on the fortunes of the Conservative party. A Conservative majority after the next election might well find itself defending various elements of its law-and-order agenda in the Supreme Court of Canada.

From Canadian Lawyer, by Ezra Levant " 'Jurocracy' skewers Charter's intent" (Apr4,2k7)

Forgive the interruption to the non-stop celebrations of the 25th anniversary of the Canadian Charter of Rights and Freedoms. There’s nothing interesting there — of course lawyers love it. The Charter made lawyers, law professors, and judges the new political class in Canada, but without the accountability hassles of a legislature. Who needs question period or elections to pass controversial legislation? Just become a judge.

So rather than go to the Charter’s loving chorus in the bar associations and the law schools, let’s do something different. Let’s ask the men who actually wrote and approved the Charter what they think of their creation, 25 years later. It’s an impossible inquiry in the United States, the last of whose constitution’s framers died more than 150 years ago. But in Canada, many of our Charter’s authors are still alive.


And they don’t like what has been done to their baby one bit.

From Canadian Lawyer, by Jennifer McPhee "The Charter and the Workplace" (Apr4,2k7). Publisher, Western Standard

Labour and employment law is one area that has seen some of the most frequent attempts to use the Charter to advance a client’s cause, like discrimination and picketing, but what lies ahead?


In the famous trilogy of labour cases addressing freedom of association under Charter s. 2(d), the Supreme Court of Canada in the 1980s ruled that the right to associate did not protect the right to strike or to bargaining collectively. However, a recent case on reserve at the Supreme Court — Health Services and Support-Facilities Subsector Bargaining Association, et al v. British Columbia — could change that and freedom of association may once again become a live issue for unions.


It’s part of a slow erosion of the original trilogy of cases which have been criticized by many legal commentators and unions.

[Weinrib also discusses manadatory retirment, aboriginal law, and privacy r+ts.]

From Canadian Lawyer, Jim Middlemiss "The Charter turns 25" (Jan8,2k7). Editor, Canadian Lawyer.

Now, almost a full generation of lawyers has lived and practised law under the Charter. It’s permeated the fabric of our society and changed the face of our nation, but has it made it better? Or has it simply driven a wedge deeper into a fractured country?


For more than 200 years, Americans have rallied around their constitution and Bill of Rights and looked upon it as a unifying event. Yet, since passing the Constitution Act, 1982, Canada has never been closer to disintegration, following referendum votes in the 1990s.


And there are no signs of that separation anxiety going away anytime soon, as the Bloc Québécois remains strong federally and the separation mandate remains part of the Parti Québécois’ platform provincially. Shouldn’t a Constitution and Charter draw a nation closer together? (The fact Quebec was left out at the end of the day is a historical tragedy, but that’s another editorial.)


The Charter has also come at a great price and great societal expense. The costs to the criminal justice system are likely into the hundreds of millions of dollars, as police forces and Crown law offices respond to court decisions such as Askov and Stinchcombe.


Corporations, too, paid the price with a rise in rights related to the workplace and now drown in human resource policies and red tape. The Charter set the standard for provincial human rights legislation and workplace accommodation now threatens productivity in industries such as manufacturing.


The Charter has also led to a much sharper-toned debate and growing row over the role judges play in society, which, rhetoric aside, is probably a good thing. While judges didn’t have much say in the changes foisted upon the judiciary by the Charter, the fact is that they have been appointed arbiters of constitutionality and with it the responsibility to uphold or strike down the work of elected Parliamentarians. It’s a big responsibility.


Some argue the judiciary has become more interventionist — a charge that judges find offensive. But the reality is their job is to intervene on a greater scale than they could pre-Charter.

By clicking-up these articles and reading them in full you can give your self an education in how the Charter has been ripped from its original purpose, how its been used for good and ill in these last 25 years. And, if you're sensitive to the bias boiling often unstated, you may get a glimpse of the tragic lack of truly critical law philosophy, able to cope with what should be its own plurality of schools of jurdical thawt and jurisprudential practise.