Second Opinion: The Charter’s next quarter century

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.

On the criminal side of the ledger, the court has invalidated provisions that interfered with the fairness of the criminal process or imposed disproportionate penalties. It also signalled disdain for the death penalty and the possibility of extradition or deportation to places where individuals could face torture. More controversially, it reformulated laws relating to social mores, particularly sexual relations. Yet to be determined: must criminal prohibitions address palpable harm in personal or societal terms?

More recently, the court has signalled that it is Parliament that must do the heavy lifting in developing the criminal law in substance and process. That said, there are a significant number of anti-terrorism prosecutions working their way up the appellate ladder, which will likely forge new law. The recently announced pro bono challenge to the prostitution-related provisions of the Criminal Code may present one of the major future cases.

The Charter has produced the same pattern, early methodological clarity, and later retrenchment, in the non-criminal cases.
Major areas of doctrine remain unsettled, inclining governments to defend cases that it might not have in the past. Purposive interpretation of the right has yielded to a mix of rights-based and socially-oriented considerations, under a variety of Charter guarantees.

The tests for s. 1-justified limitation have migrated into the analysis of almost all of the guaranteed rights, undermining the stipulated shift in onus. The onus and burden of proof for the components of the limitation analysis under s. 1 remain unsettled, even taking account of the importance of context. The role of the trial judge in fact finding varies.

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.

New technologies will raise Charter issues, for example reproductive interventions, regulation of content and languages on the internet, and environmental protection.
Some types of cases may wane. The s. 15 equality rights tests have become complex and restrictive. Limitation arguments on s. 7 life, liberty, and security of the person violations are conceivable. The Supreme Court has rejected the view that s.15 protects against general disadvantage or poverty.

In addition, the court prefers cases that are revenue neutral. Claims to extend existing benefit programs or public health care are not likely to succeed. While the court has bound executive discretion to the Charter, it now seems reluctant to intervene in policy areas, especially those where money is at stake, even on credible allegations of bad faith.

There will be fewer cases and interventions on behalf of “ordinary Canadians” due to the cancellation of the Court Challenges Program. Revenue arrangements such as tightly controlled cost orders or class actions will not likely fill the gap. Furthermore, the remedial orders on offer may deter those who seek more than a victory in principle.

The court is willing to drastically re-interpret challenged provisions to avoid invalidation and delayed orders of invalidity have become the norm and not, as anticipated, the exception.

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.

Lorraine E. Weinrib is a professor at the Faculty of Law, University of Toronto and the regular Law Times columnist on constitutional affairs.

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