The Charter Symposium
Two weeks ago, I was fortunate enough to attend a symposium in Toronto on the 25th Anniversary of the Charter. Aside from being quite obviously the youngest person in the room, the entire day was quite a marvel. TheCourt.ca’s new Editor-in-Chief James Stribopoulos reported on the Top 10 Charter decisions which were released that day, but that presentation was merely one of a half-dozen. I’d like to use this post to recount some of the other events of the day, and how they reflect on the Supreme Court of Canada (“SCC”) and the Charter in their first twenty-five years together.
The day began with a remarkable discussion between Roy McMurtry, Roy Romanow, and Jean Chrétien. Before rising to the ranks of Chief Justice of Ontario, Premier of Saskatchewan, and Prime Minister, respectively, these three drafted the infamous Kitchen Accord which allowed the Charter to come into being. Obviously, there were great forces at work in the early 1980s, but the three spoke of how important their personal friendship and mutual respect was toward facilitating a final deal. They also all shared the same motivation: it was embarrassing that Canada was still unable to amend its own constitution, and had yet to throw off the final vestiges of Empire. The Charter has attained a supernatural status in its short tenure – it is referred to as a disembodied object, radiating power and ethics. In many ways this status is deserved, but it was nevertheless refreshing and enlightening to witness its humble beginnings in pragmatic politics.
Against that backdrop of history and politics, the legal discussions began. Justice Robert Sharpe identified a key theme throughout the day. In the beginning, the judicial interpretation of the Charter was uncertain, and it is remarkable that the Charter has become as influential and functional as it is today. He identified Hunter v. Southam,  2 SCR 145 and Big M Drug Mart,  1 SCR 295, as among the most important Charter decisions to date, and largely because they represented Chief Justice Dickson’s successful bid to breath the life into the Charter that had so lacked from judicial interpretations of the Canadian Bill of Rights, SC 1960, c 44.
The way it is taught in universities and law schools (in my experience) was that the entrenchment of the Charter was the key difference. That may very well be true, but from the reflections of the day’s speakers, it is clear that without Dickson C.J.’s tireless advocacy of a “large and liberal” interpretation, demonstrated by his judicial opinions and frequent speeches to the law schools and bar associations, the face of the Charter would have been far different.
Chief Justice Beverly McLachlin gave her assessment of the Charter to date, and offered some words of advice for the next twenty-five years. I found her comments regarding the protection of minorities particularly insightful. She said that not only does the Charter forthrightly protect minority rights by the entrenchment of s. 15, but just as importantly the Charter enunciates distinctly Canadian values, and in so doing gives all Canadians a base from which to build a shared identity. She also praised the Charter with bringing forward contentious and difficult issues for public debate. And she said that while the Charter may not have single-handedly ushered in Trudeau’s “just society,” it has made ours a more just society, and that that is good enough for any single instrument. But the bulk of her speech was devoted to looking forward and identifying areas of caution and improvement for the Charter.
Her largest concern seemed to be the startling lack of knowledge in the general public regarding the Charter, and the potential for misunderstanding this creates. Though recent immigrants and new citizens are showing a good understanding of the Charter and its contents, she said the public school system is not doing enough. Her suggestion is that the Charter, its contents and its role, be part of the core curriculum for all students.
Speaking from experience, the Charter is almost entirely off the radar in Ontario high schools. I was one of the few who actually took the “Canadian Law” course, but even it contained a dearth of quality information. And the Charter received only cursory attention in Canadian History, Civics, and the like.
Her other areas of concern were the possibility politicians in the future could begin to leave difficult and divisive issues for the judiciary, and that individual rights would reduce the focus on both collective and individual responsibility. Neither have yet been realized, but the potential for both still exist, and Canadians should guard against them from happening.
Her final concern was the increasing length and cost of criminal trials. While this is due to a variety of factors, it is undoubtedly aided by Charter motions, and post-Charter procedural requirements (such as disclosure). The solution is most certainly not to detract from the Charter’s procedural guarantees, but instead to start looking at ways which we can completely overhaul the procedure and practice of criminal law.
And in what would be a boon to the editors here at TheCourt.ca, the Chief Justice promised shorter SCC judgements going forward. But her speech came on the heels of the Via Rail decision, which weighed in at 370 paragraphs. So I’ll have to reserve judgement of my own on that promise.
Former SCC judge, and current UN High Commissioner for Human Rights, Louise Arbour, provided a critical analysis of the Charter. She certainly applauded its contribution to human rights culture in Canada, and likewise recognized its significant improvements to human rights and individual rights. She spoke passionately about how her international experience has deepened her respect and appreciation for the Charter. But she also identified areas in which it has either not done enough itself, or is too limited in form. The Charter’s largest failing, according to Justice Arbour, is its inability to guarantee basic social, cultural, and economic rights. Economic rights in particular are completely absent from the Charter. She attributes this to both structural flaws (there are no sections specifically designed to address economic rights) and also SCC decisions like Gosselin v. Quebec,  4 SCR 429 [Gosselin], (on which Justice Arbour dissented), which have steadfastly refused to place positive obligations on the government with respect to life, liberty and the security of the person.
This was quite the departure from the more commonly heard demand that property rights be placed within the Charter. Such rights would protect property holders from government intervention, whether through zoning, regulations, or even taxation. But the economic rights suggested by Justice Arbour are the opposite: the rights of those most in need to demand social assistance from their more wealthy fellow citizens.
The speeches by the Chief Justice and Justice Arbour followed one another, and I quite enjoyed the stark contrast between the two. It was clear the two have a fundamental disagreement on the proper criteria to apply when judging the Charter. In my opinion, the disagreement stems from the Chief Justice’s comments on the just society. Chief Justice McLachlin is rightly proud of the Charter in that it has achieved so much in so little time. But Justice Arbour sees the Charter as an instrument more than capable of actually achieving the fabled “just society;” by entrenching economic, social and cultural rights in addition to the ones already there, we could have a comprehensive rights document. Against such a standard, the Charter admittedly has quite a way to go.
Which view is correct is anyone’s guess; certainly neither side is lacking in credentials. And the door is certainly not closed to such an interpretation. Responding to Justice Arbour’s dissent in Gosselin, the Chief Justice wrote:
“One day s. 7 may be interpreted to include positive obligations… The question therefore is not whether s. 7 has ever been — or will ever be — recognized as creating positive rights. Rather, the question is whether the present circumstances warrant a novel application of s. 7 as the basis for a positive state obligation to guarantee adequate living standards.”
But Louise Arbour ended her speech on a note which had Chief Justice McLachLin nodding in agreement. Though I’m paraphrasing a little, she said:
“The greatest potential for human rights development is in large pluralistic societies. The greatest danger comes in small homogeneous communities. And particularly when the assertion of those rights challenges the notional homogeneity of those communities.”
With words like that, the Law Society’s exorbitant ticket price was worth it.