They were three architects of the Charter of Rights and Freedoms and while they may hold contrasting views on its impact so far on Canadian law, all agree on what’s likely to come in the future.
The trio – former Ontario attorney-general Roy McMurtry, former Saskatchewan attorney-general Roy Romanow and constitutional adviser John Whyte – predict that future challenges to the Charter will centre on equality guarantees as well as the open-ended guarantee of life, liberty and security.
They say electronic surveillance – particularly in the context of national security and privacy issues – will likely be a dominant theme.
The three are among a small band of political leaders and consultants who launched the Charter into uncertain waters on April 17, 1982.
Future decisions will be influenced by a new breed of judges, who were trained in constitutional law after the Charter was enacted and who feel comfortable with the notion that Charter decisions change laws and society itself, Mr. Romanow said.
“They will have concentrated on the philosophy, theory, underpinnings and practicalities of an entrenched Charter of Rights,” he said. That’s in contrast with every judge who has served on the Supreme Court since 1982, who were trained in constitutional interpretation rooted in a division of powers devised by the founders of the country.
Mr. Romanow said a 2005 decision known as Chaouilli, in which the Supreme Court struck down a prohibition on private medical coverage, showed how deeply courts are prepared to delve into fundamental public-policy questions.
“It was a warning shot,” he said. “Future generations may very well see the court dealing with issues of social policy in a much more expansive way.”
A future Chaouilli-like decision may induce a government to risk a public backlash and invoke the Charter’s rarely used notwithstanding clause to reinstate the law, Mr. Romanow said. He predicted that judges might surprise the country by welcoming the selective use of the Charter override.
“Some have argued that it could liberate the judges,” Mr. Romanow said. “They might say: ‘If you want to make the decisions, go ahead.’”
Prof. Whyte, who was director of constitutional law for Saskatchewan during the Charter negotiations, contends that many will try to invoke the equality guarantee, but with little success. The equality guarantee is “near death,” he said, because it was poorly drafted and then subjected to repeated, tortured interpretations by the courts.
Prof. Whyte predicted that the guarantee of religious freedom may also be used frequently. “Given the maelstrom of religious cleavage of the present age one might think that this would be a topic that attracts Charter-based regulation,” he said. “However, religion has become joined at the hip with politics,” Prof. Whyte added. “It may have left the realm of Charter law.”
While the three architects may be in agreement on the Charter’s future, they are anything but on its qualitative influence on Canadian society.
Thirty years later, Mr. McMurtry and Mr. Romanow believe the judiciary has exercised its authority, but has not run amok with power.
“Judges have been more activist than I anticipated,” Mr. McMurtry said. “But I can’t say I am particularly surprised. The Supreme Court of Canada has been an activist court. And I say, why shouldn’t they be?”
But Prof. Whyte holds a dissenting view, expressing keen disappointment at what he sees as a lack of coherence in most Supreme Court decisions.
The Supreme Court has been unable to produce seamless jurisprudence that defines the boundaries of Charter guarantees, Prof. Whyte said. “Case after case lays down restrictive tests – and then case after case ignores them,” he said. “The SCC seems a little lost in the Charter.”
For most opponents of the Charter, however, the overriding fear was that judges would usurp the role of elected political leaders. But Mr. McMurtry said the judiciary is too attuned to public reaction to veer from their proper role.
“Despite their independence, judges are not unmindful of the need to maintain a high level of public support,” he said.
The Charter showdown
The Globe picked 30 of the most important Charter cases that reached the Supreme Court. We asked you which rulings improved Canada the most. Thousands of Globe readers weighed in. tgam.ca/charter
Most popular decisions (approval rating):
1. R. v. Stinchcombe, 1991 – 94 per cent
The case compelled the Crown to disclose all evidence to the defence in a criminal trial.
2. Hunter et al. v Southam Inc., 1984 – 92 per cent
The Supreme Court’s first ruling on search and seizure, it invalidated evidence gathered from a newspaper office without a valid search warrant.
3. M. v. H., 1999 – 92 per cent
The court gave cohabiting same-sex couples the same rights to divide property as other couples.
Least popular decisions:
1. Rodriguez v. B.C. Attorney-General, 1993 – 18 per cent
Globe readers strongly disliked the narrow court decision that upheld a ban on assisted suicide.
2. R. v. Daviault, 1994 – 20 per cent
The case reinstated a criminal defence of extreme intoxication – which Parliament quickly reversed.
3. R. v. Gladue, 1999 – 50 per cent
- Chris Hannay
Readers were split on the ruling that compelled judges to look at mitigating factors when sentencing aboriginals.