Debate ebbed and flowed about former prime minister Pierre Trudeau's greatest legacy in the days after his death, but there was no mistaking the runaway winner: the Charter of Rights and Freedoms.
The public has never forgotten the years of planning and scheming Mr. Trudeau devoted to his beloved "People's Package" before he finally battered down provincial resistance and delivered the Charter on April 17, 1982.
"People kept saying: 'He brought us the Charter of Rights,' " University of Toronto political scientist Peter Russell said. "It was like Moses bringing down the Ten Commandments. People see the Charter as somehow completing the country."
Several hundred Charter judgments later, opinion is inevitably divided on the merits of the Charter. But one thing is certain. It has forever changed the way Canadians see themselves and the role of the state. A nation whose defining trait was polite acquiescence has embraced the assertion of individual rights.
The Charter ranks as one of the pinnacles of Canadian achievement, according to Patrick Monahan, a professor at York University's Osgoode Hall Law School. "Along with the Canada Health Act, the Charter is clearly established as one of the major defining elements of the Canadian identity," he said in an interview.
Why, despite dire warnings from skeptics that it would explode the country's political underpinnings, did Canadians take so readily to the concept of a Charter?
To John Dixon, president of the B.C. Civil Liberties Association, it grew out of a perception that courts are more accessible and transparent than the largely invisible world of politics.
"Government is inaccessible and enormously self-protective," said Mr. Dixon, a former senior adviser to the federal Minister of Justice. "The real political action involves small groups of mandarins working behind closed doors. But look at the courts in contrast. The process is utterly transparent and rational. Citizens get to hear the same evidence the judges do, and when judges make a decision, they have to provide coherent reasons."
But that was light-years from how the opposing provincial premiers saw it in 1981, when they warned Mr. Trudeau that he was forging a template for judicial adventurism.
"We weren't just being ill-tempered," recalled Sterling Lyon, a former Manitoba premier and retired appellate judge, in an interview. "It all goes back to a grade-school understanding of the hierarchy of power in a parliamentary system. I said time and again to the Prime Minister: 'You're taking power from Parliament -- the representatives of the people -- and giving it to nine people. What you are doing is importing an alien appendage into our parliamentary system."
Mr. Trudeau, however, had a different background and world view. He dwelt in a world of politics, yet his training was in law and the pursuit of reason and logic.
Moreover, Mr. Trudeau had grown up in the 1950s in a province whose premier -- Maurice Duplessis -- repeatedly trampled on minorities such as the Jehovah's Witnesses by removing their right to proselytize.
"It was the Supreme Court of Canada that kept riding to the rescue of the Jehovah's Witnesses and political dissenters," said University of Toronto law professor Kent Roach, author of The Supreme Court on Trial. "People tend to forget that there was a whole realm of judicial activism in the 1950s.
"I think that had to leave an effect on Mr. Trudeau. It seems to me that he had a keen sense of the role that an independent judiciary can play. It all fits into his belief in reason over passion. He reasoned through problems and took unpopular stances. His personal style was perhaps more like a judge than a politician."
The jury would remain out until 1984 on a single, overridingly important question. Would the Supreme Court of Canada gut the Charter in the same way it had the Bill of Rights in the 1970s, when the court ruled it lacked constitutional authority and refused to use it to invalidate laws?
They delivered a resoundingly receptive response when the first Charter appeals began to trickle in.
"It was a time of bright optimism," recalled Osgoode Hall Professor Allan Hutchinson, no supporter of the Charter. "Their approach was swashbuckling."
"The first period was, quite emphatically, the most difficult," Mr. Justice Frank Iacobucci of the Supreme Court of Canada said in an interview. "There were no road maps or guidelines. This is not to say that the last 10 years have been without their challenges, but the debt we owe those judges is immense."
In this -- the first of three distinct stages -- the public remained relatively upbeat and supportive as the courts swept aside a number of pieces of musty legislation that ranked high on any law reformers' hit list. Relegated to the dustbin, for example, was a seven-year, mandatory minimum sentence for drug trafficking. So were a smattering of "reverse onus" offences, which required a defendant to prove his own innocence.
Law schools were infused with heady debate about the Charter. Criticism came mainly from political leftists, who nodded knowingly as corporations won a few early victories. The courts excluded the right to strike and collective bargaining from Charter protection, for example, and ruled broadly that the Charter did not apply to workers involved in private disputes with their employers.
There was a strange naiveté to some rulings. In Regina v Askov, for instance, the Supreme Court unwittingly caused tens of thousands of criminal charges to be dropped for taking too long to come to trial. The court rapidly backtracked.
The Charter was unexpectedly plunged into its second phase in the early 1990s -- a phase marked by sustained and strident attacks from police and a cadre of editorialists and academics on the conservative right. Judges were derided as social engineers or syrupy liberals bent on usurping the power of elected legislators.
The Reform Party carried the debate into Parliament, mocking judicial claims to impartiality and insisting on a procedure to question judges about their views before their appointment to the bench.
University of Calgary political scientists Ted Morton and Rainer Knopff summed it all up in a derisive label -- the Court Party -- to describe a judiciary they felt had hijacked and politicized social policy. They alleged that the Court Party was a loosely knit group of civil libertarians and feminists.
"I didn't see the right-wing, populist attack coming," confessed Prof. Russell, the dean of Canadian court watchers.
To be sure, groups classed as being in the Court Party made regular and successful appearances in the Supreme Court. In one notable case -- Operation Dismantle -- a total of 25 organizations and unions mounted legal interventions. The court, however, not only welcomed a broad range of arguments, it actively encouraged them.
"Social-science data and intervenors played an absolutely essential role -- especially in the beginning -- and the court places far more reliance on academic writing than used to be the case," Judge Iacobucci said.
Prof. Hutchinson said the judiciary was, nonetheless, shocked and somewhat befuddled by the abuse suddenly being heaped upon it. "They said: 'Look, you were all over us for not doing anything under the Bill of Rights. Now we do something, and you're all over us for that too.' The court entered a period of hesitation, as if they were thinking that maybe they had pushed the boat out too far."
With the recognition that their credibility was under siege, Supreme Court judges began to open their chambers to the press and made time in their punishing schedules for numerous speeches.
Over the past couple of years, the tide has turned. The Canadian Alliance, consumed by political infighting and doubtless aware of surveys showing consistent public support for the Supreme Court and the Charter, has gone silent.
"Public-opinion research shows the Charter is extremely popular in all regions of Canada, including Quebec," Prof. Monahan said. "It is a remarkable story in a country where you rarely see that kind of consensus."
The third stage of the Charter era now features occasional, bold rulings that upsets powers-that-be, but the Supreme Court has a strategic eye firmly trained on Parliament and its own public image. It has seized on a catch phrase that denotes its comradely approach to the legislatures -- a relationship it habitually refers to as "a dialogue."
"I do perceive this court as becoming somewhat more conservative," acknowledged retired chief justice Antonio Lamer. "A lot of people might agree that the court should be more deferential than it has been in the past."
Prof. Russell said these regular genuflections toward Parliament have only marginally appeased the right. In the end, he said, nobody is particularly happy. "The moderate nature of the Supreme Court has not pleased the Charterphiles, but it has been absolutely infuriating to the Charterphobes."
According to legal scholar James B. Kelly, the court's conservative turn actually began in 1993. It continued to favour Charter challengers in about 34 per cent of the cases it heard, but the number of statutes struck down began to decrease.
The court instead took to attacking decisions by public officials -- decisions that tend to be case-specific, less controversial and unlikely to have broad ramifications.
"The overall trend in the court's jurisprudence suggests that the court has settled into a moderately activist approach to the Charter," Prof. Kelly concluded in a paper.
In another recent paper, Department of Justice lawyer Peter Brauti noted that the Supreme Court has grown timid about evidence obtained unconstitutionally. Legislatures seem quite willing to enact legislation that is "at odds" with previous court rulings, he said.
So much for the dialogue.
There is, however, at least one dissenting voice. "When I see the court being selective, I don't think of that as the court running scared," Mr. Dixon said. "They just don't want to needlessly squander their credibility."
Judicial patterns spanning decades suggest that over the long haul, courts tend to veer back and forth across the centre line of public opinion, self-correcting their course when public reaction suggests they have gone too far.
"If a court continually renders decisions that for one reason or another are not acceptable to the majority of the public, it puts its legitimacy on the line," Judge Iacobucci said. "At the same time, if a judge tries to anticipate what the public wants on a given question, then we are lost.
"By definition, these cases are extremely difficult," he said. "You can only hope that even with the very unpopular decisions, the reasonable citizen will say: 'I may not agree with it, but I can't say it was arbitrary or wrongheaded.' "
After 20 years in the eye of the storm, judges seem increasingly at ease. "If I waited to get accolades, I would despair," Madam Justice Louise Arbour said in an interview. "To me, it really doesn't matter. I would only worry if I felt the institution was really under attack, was losing ground, and that the quality and soundness of its work was not coming across."
Judge Iacobucci said that while he is satisfied with the first 20 years of Charter development, one intangible aspect of the new era troubles him. "I share the concern that the more we have rights and privileges and entitlements, the more we lose sight of obligations and duty," he said. "We must keep a moral appreciation for our responsibilities."
But Prof. Hutchinson said it is too late to start worrying; our collective sense of responsibilities has already decayed. "Our democratic instincts have been dulled by the Charter. By putting in place the idea that the courts are guardians of democracy, people's participation in the democratic process has atrophied. Groups now think that if you want to be involved in the democratic process, get a lawyer."
Whatever the case, the Charter is moving into new terrain. A good deal of the early Charter spadework -- particularly in the criminal law area -- is done. The judiciary faces new and taxing challenges.
The courts will be called on, for example, to interpret the synergistic effects of one Charter section on another. The effects of technology on human biology, privacy, commerce and borders are certain to spawn new crops of cases.
"The Charter is a work in progress," Judge Iacobucci said. "This is a birthday party -- not a final report card."
In the series
Saturday: Winners and losers who have emerged after hundreds and hundreds of challenges. Monday: Anatomy of a Charter case. A small independent bookstore in B.C.takes on the government. Yesterday: The Supreme Court judges and their so-called grab for power. Today: Is the Charter Pierre Trudeau's greatest gift to Canadians?