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."
Supreme Court of Canada Justice Marshall Rothstein laughs as he is sworn in in April 2006. In the background are Justice Michel Bastarache and Chief Justice Beverley McLachlin. (Reuters/File)
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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.
