Charter remains a living tree 30 years on

Canada has lived under the Charter of Rights and Freedoms for the last three decades, but constitutional lawyers and legal experts say the battle to define its parameters is far from over.

In the time since the Charter became part of the supreme law of the land on April 17, 1982, its impact on the Canadian legal landscape has been significant. In the last few months alone, it has played an integral role in the pending legalization of brothels in Ontario and the continuation of safe injection sites.

This week, as people across the country celebrate the Charter’s 30th anniversary, constitutional experts are taking stock of where it has taken the practice of law.

“The Charter has added many layers to law in Canada over the past 30 years,” says Jamie Cameron, a constitutional law expert at Osgoode Hall Law School.

“It has challenged lawyers to think of law as an agent of change and has changed the way we see ourselves and how citizens and governments see themselves.”

Recently, the Ontario Court of Appeal moved to legalize brothels in a decision citing the rights and freedoms outlined by the Charter that entitled sex workers to the same protections as others who work in dangerous but legal jobs.

Prior to that, the Supreme Court ruled in favour of safe injection sites in a decision that focused on fundamental rights and freedoms outlined by the Charter.

Cameron notes the Charter has also led to an increased awareness of the rights of minority groups and a significant transformation of the criminal justice system over the last 30 years that now provides for greater rights for the accused.

“The Charter has probably had the biggest impact on the criminal justice system in Canada,” says Cameron. “Trials are much longer now and more complex as the rights of the accused become increasingly protected.”

Prior to the Charter, according to lawyer Clayton Ruby, facts were largely what drove criminal defences. “No one ever raised the issue of police acting improperly,” he says. “Now, the focus has been changed beyond the accused’s conduct to the government’s conduct.”

Despite the changes, many constitutional experts and lawyers say the battle to define and interpret the Charter isn’t over yet. They point to recent decisions by the federal government that they suggest indicate a watering down of the Charter.  

“The Charter was meant to create a very sophisticated dialogue between the courts and the government, but lately the federal government seems to be acting very cavalierly in taking away fundamental freedoms like the right of workers to strike,” says Paul Cavalluzzo, a constitutional lawyer at Cavalluzzo Hayes Shilton McIntyre & Cornish LLP.

“Still, the courts seem to be very clearly saying many of the freedoms outlined by the Charter are fundamental and trampling on them requires good enough evidence to do so.”

Last month, the federal government introduced legislation to suspend the rights of Air Canada workers to strike during the current round of negotiations. Its actions on the Air Canada file have been a slap in the face to workers who enjoy protection under the Charter, says Cavalluzzo.

“The federal government seems to have far less respect for the Charter as far as public-sector clients are concerned,” he says.

Despite these challenges, Ruby says the Charter will continue to play an important role in Canada’s legal landscape in the coming years.

“The justice system has always claimed ethics and morality as its sphere but for centuries has turned a blind eye to justice and abuse,” he says.

“The Charter was the moral breakthrough. It allows citizens to no longer be mere subjects of the justice system but human beings with rights and dignity.”

Events to celebrate the Charter’s anniversary include the Charter Project launched by the University of Windsor’s graduating law class. In addition, the Association for Canadian Studies will host an event featuring several constitutional law experts talking about the Charter’s significance on April 17-18 in Ottawa.

The Canadian Bar Association will also be hosting events this week as part of Law Day.

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