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?"
