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Ontario Chief Justice Roy McMurtry had never appreciated the Charter of Rights and Freedoms quite as much as when al-Qaeda terrorism suddenly dominated the global agenda.

Chief Justice McMurtry knew instinctively that members of certain minority groups could come under deep suspicion, and that without Charter protection, they were liable to be hounded and mistreated.

"If there is ever a significant terrorist act in Canada, the public attitude will understandably be bloody-minded," he said in an interview. "It makes me very happy that we have a Charter. I think we have to be very cautious. If a particular element of our population is going to be generally suspect, this will create a dangerous alienation which can provide great problems."

As a primary architect of the 1982 Charter -- which has its 25th anniversary next week -- Chief Justice McMurtry said its detractors have "grossly exaggerated" the power that judges have gained to override the will of politicians. In reality, he said, the Charter has created a healthy, robust dialogue between the two branches of government: "The extent to which so-called judicial activism has frustrated Parliament has been minimal."

Whether the Charter will look as robust in another 25 years is open to debate. Gusts of discontent from the ideological right have increasingly driven senior courts to take cover. In addition, the costs of litigation have sent the price of a Charter challenge soaring out of reach for ordinary litigants and many public-interest groups.

Coupled with the slow starvation of legal-aid programs and the recent demise of the federal Court Challenges Program, which financed test cases and legal interventions, the future looks bleak for Charter challengers.

"We are stuck with this Charter that looks wonderful on paper, but it's just that -- paper -- unless people have the ability to enforce their rights," said Bruce Ryder, a law professor at York University's Osgoode Hall Law School. "Only those who drive a Cadillac get to use the Charter highway."

Amid these grim prospects, the courts are sure to face more sensitive and politically volatile issues -- including topics such as terrorism, reproductive technology, euthanasia, cloning and sophisticated electronic intrusions into privacy. The Supreme Court's landmark 2005 Chaoulli ruling, which said that patients can seek private care if their needs are not met in a timely fashion, is also bound to spawn more cases attempting to map out the boundaries of medicare.

On another front, modifications to the appointment process for Supreme Court of Canada judges have raised serious questions about who will decide these cases. If the ideological views of judicial nominees become a dominant consideration for future governments, the Supreme Court could end up resembling its U.S. counterpart, where liberal and conservative factions are entrenched and predictable.

Opponents of the Charter enthusiastically welcome the increasing barriers to litigation. They condemn the Charter as a make-work program for imaginative lawyers that has eroded parliamentary democracy and stripped vigour from political debate.

"We have come to think that the courts play a role in true democracy," said Osgoode Hall law professor Allan Hutchinson. "In reality, there is this sapping of democratic energy. People are looking to the courts to rescue them rather than politicians. Politicians love this; it gets them off the hook. It has allowed them to pander to the public, because they've got the courts behind them to take care of things. My question is: Why do we have any confidence that the courts have any idea what they are doing, when it comes to significant issues?"

Speaking at a recent Charter conference at McGill University, former B.C. attorney-general Andrew Petter, now dean of law at the University of Victoria, said the Charter perverts the public-policy process. He recalled that, as attorney-general, he was appalled to see how "risk averse" justice bureaucrats were. They constantly advised him not to propose certain pieces of legislation that he felt were perfectly legitimate for fear of offending the Charter. "Non-lawyers are tremendously influenced by that kind of advice," Prof. Petter said. "The power of lawyers in this way is huge."

Yet for all the outcry about judicial activism and the subversion of political will, public opinion polls show consistent, high levels of support for the Charter. Average Canadians have clearly come to see themselves as individuals with rights that cannot be trampled underfoot. "If anything, it is actually more a part of the fabric and identity than it was 10 years ago," said Wayne MacKay, a law professor at Dalhousie University.

Back in 1982, however, the Charter's fate was uncertain. One question overrode all others: Would the Supreme Court simply strangle the Charter at birth, as it had done years earlier with prime minister John Diefenbaker's Bill of Rights?

Under chief justice Brian Dickson, the court quickly signalled its preparedness to strike down laws and pump life into the Charter. The early rulings, and vital, interpretive ground rules the Court laid down created a climate of expectation.

"There had been a feeling among the first ministers and those working on it that the Supreme Court of Canada had demonstrated a high level of restraint and would continue to do so," Chief Justice McMurtry said. "I don't think anyone anticipated the degree to which the Charter would become a very, very major component of the justice system."

Still, he added: "I have to remind people from time to time that the Charter was a result of an almost-unanimous decision of Parliament to give -- some might say, to impose -- this authority on judges. I don't recall any judges arguing to have it."

Former chief justice Antonio Lamer's fractious court continued the work with gusto; its expansive rulings unleashing a rush of recruits to the once-slim ranks of those who opposed both the Charter and judicial power.

This growing clamour set the stage for the current court, presided over by Chief Justice Beverley McLachlin. A notably unified bench, the McLachlin court proceeds with a sense of cautious conservatism that to some critics borders on timidity.

"This court is very concerned about retaining its legitimacy," Prof. Hutchinson said. "I think the court is very strategic. We don't have a lot of ideologues on this court."

This is not surprising, Prof. Mackay said. "I think the truth is that they [the critics] have had an impact on the McLachlin court," he said. "I think it is in their consciousness. They are quite aware of the importance of balance."

So, what lies ahead? The consensus of experts seems to be that the Charter was written broadly enough to encompass just about any case that may arise in future.

A fascinating vein of litigation will soon focus on the guarantee of religious freedom, Prof. Hutchinson predicted. He said that these cases will raise thorny issues such as the constitutionality of female circumcision, funding of religious schools and where religious garments can or cannot be worn. "There is a religious backlash, and the courts are going to get caught in the middle of it," Prof. Hutchinson added. "I don't think they will know what to do."

With the rocketing costs of health care on a collision course with growing life expectancy, Prof. Hutchinson also predicted that euthanasia is a Charter litigation monster soon to be unleashed.

"I think it will become the abortion issue of the next 25 years," he said. "The pressure for legalized euthanasia is going to be enormous from old people who are living a miserable existence and just want to die. This, too, will touch on religion."

Prof. Mackay said that he expects privacy rights to be front and centre in the years ahead as national security is increasingly used to justify major incursions by the state.

University of Toronto law professor Kent Roach said that it would not surprise him to see a concerted attempt to insert victims' rights into the Charter. "If the Charter had been drafted in 1992 or 2002, we might well have seen them in it," he remarked.

Sections of the Charter that have been left fallow thus far -- the guarantee against cruel and unusual punishment, for example, and the right to adequate language interpretation in courts -- could finally come into play.

The Supreme Court may also be forced to squarely face the dilemma created by inadequate legal-aid programs that have left numerous low-income litigants representing themselves in court. "It's somewhat surprising that this hasn't already been thrashed out by the Supreme Court," Prof. Roach said. "We still don't know what constitutional standards apply to legal aid."

On another front, debate about the merits of proportional representation and the gerrymandering of electoral districts appears to be tailor-made for a challenge under the Charter's voting-rights section.

Socioeconomic rights, too, offer fertile ground for those who can leap the barriers to litigation. While the Supreme Court has so far refused to grant what is known as a "positive right" to programs such as welfare, it has left the door open for future courts to do so.

Prof. Mackay said that low-income litigants will eventually use the Charter equality guarantee to challenge public-housing conditions, the quality of the education system or the manner in which university tuition fees exclude low-income earners.

THE SERIES

Monday

Most Canadians trust judges more than they do MPs, and would support an elected judiciary, a Globe/CTV poll finds.

The courts often strike down laws, but not when it means reallocating public money.

Yesterday

Criminal law has been the powerhouse of Charter litigation, but that is changing.

Three experts pick their top 10 most influential Charter rulings.

Today

The Charter has transformed the laws and psyche of Canadians, but controversy and barriers to litigation are growing.

Winners and losers in Charter litigation.