Top 10 Charter Cases: As Revealed at the Symposium on the 25th Anniversary of the Charter, A Tribute to Chief Justice Roy McMurtry

Introduction

The Court has been given a sneak peek at the list of “top ten” decisions in the first 25 years of the Charter‘s history that will be revealed at today’s symposium commemorating the Charter‘s Silver Anniversary.

As readers of The Court will know, April 17, 2007 marks the 25th anniversary of the Charter; it is also the 10th anniversary of Osgoode Hall Law School’s Constitutional Cases Conference. To mark these occasions the co-chairs of Osgoode Hall’s annual conference – Dean Patrick Monahan, Professor Jamie Cameron, and Professor Bruce Ryder – decided to strike a panel of experts who would select the “top 10”Charter decisions so far. The object, Professor Cameron reports, was to gather some of Canada’s leading experts on the Charter and ask them to identify the cases which, in their judgment, have had the greatest impact on the Charter‘s interpretation and evolution in its first 25 years.

The Panel

The panel, Chaired by Professor Jamie Cameron (who graciously agreed to share this list with The Court) consisted of ten experts, each of whom has a deep knowledge of the Supreme Court of Canada’s Charter jurisprudence. It included judges from the trial and appellate courts of Ontario and Saskatchewan; Charter experts at Osgoode Hall and the law schools at the University of Toronto, University of Ottawa, and McGill University, and lawyers who had the unique opportunity to litigate cases in the early years of the Charter‘s development.

According to Professor Cameron, identifying the decisions which truly stand out as the “top 10” proved to be a formidable task for members of the panel. The panel consisted of the following experts:

1. Professor Jamie Cameron, Osgoode Hall Law School, York University
2. Mr. Peter Hogg, Q.C., Counsel, Blake Cassels & Graydon LLP
3. Ms Roslyn Levine, Q.C., Regional Director & Senior General Counsel, Department of Justice
4. Dean Patrick Monahan, Osgoode Hall Law School, York University
5. Professor David Paciocco, Faculty of Law, University of Ottawa
6. Mr. Justice Robert G. Richards, Saskatchewan Court of Appeal
7. Mr. Justice Marc Rosenberg, Ontario Court of Appeal
8. Professor Colleen Sheppard,Faculty of Law, McGill University
9. Professor Lorne Sossin, Associate Dean, Faculty of Law, University of Toronto
10. Madam Justice Katherine Swinton, Ontario Superior Court of Justice

The Process

The list generated, reproduced below with an accompanying explanation of each case written by Professor Cameron, is the result of the rankings of the various panelists. The votes show that panelists were in substantial agreement about several of the cases which appear on the list. At the same time, Professor Cameron reports that differences of opinion also emerged in the process of selecting the top 10. For that reason, the committee decided to also release a list of “honourable mentions” (which is reproduced at the end of this post).

The Top 10 Charter Cases…

10. (Tied) R. v. Askov, [1990] 2 SCR 1199; (October 18, 1990)

15 votes

The Supreme Court held (9-0) that a delay of almost two years in bringing charges to trial violated the accused’s right, under s.11(b) of the Charter, to be tried within a reasonable time. The charges against the accused were stayed as a result.

In terms of raw impact, R. v. Askov was one of the Supreme Court’s most dramatic decisions in the first 25 years. Thousands of criminal charges were stayed following the Court’s conclusion that institutional delay could not excuse a violation of s.11(b)’s guarantee of trial within a reasonable time. Had Askov‘s guidelines been more strictly enforced in the subsequent case law, the decision might have had a higher ranking in the top 10 list. Still, Askov‘s impact on the criminal justice system cannot be easily forgotten. And, as burdens on the system remain a challenge, Askov serves as a reminder that the institutions of the criminal justice system must comply with s.11(b) and its guarantee of trial within a reasonable time.

10. (Tied) R. v. Collins, [1987] 1 SCR 265; (April 9, 1987)

15 votes

The Supreme Court of Canada held (5-1) that evidence obtained by a search that is unreasonable and in violation of s.8 of the Charter should be excluded under s.24(2) if its admission would bring the administration of justice into disrepute.

The decision to develop the fair trial dichotomy for the exclusion of unconstitutionally obtained evidence (in which “self-incriminatory” and later “conscriptive” proof would have to be excluded to preserve the fairness of the trial) has caused the rejection of critical evidence in thousands of cases, and has bedeviled the impaired driving area in particular. This coupled with the acceptance that an illegal search is necessarily an unconstitutional search (even though an illegal detention is not necessarily an unconstitutional detention) has had a significant effect on the prosecution of cases. Had a more miserly exclusionary standard been adopted, it is likely that criminal litigation would not be the Charter based body of law it now is, as exclusion provided the incentive for litigating Charter rights.

10. (Tied) Law v. Canada (Min. of Employment and Immigration), [1999] 1 SCR 497; (March 25, 1999)

16 votes

The Supreme Court of Canada held (9-0) that a Canada Pension Plan provision which limited access to survivor’s benefits on grounds of age did not constitute discrimination and did not violate s.15(1) of the Charter.

Prior to its decision in Law v. Canada, the Court had been unable to agree on a definition of discrimination. As a result, the s. 15 jurisprudence remained unsettled in the decisions leading up to Law. There, all members of the Court joined Mr. Justice Iacobucci’s path breaking opinion, which endorsed a substantive approach to equality – informed by a purposive and contextual analysis, and established respect for human dignity as the guiding principle of s.15.

Ten years after Andrews v. Law Society of British Columbia, [1989] 1 SCR 143, Law v. Canada created a doctrinal framework to govern claims arising under s.15. The Law test established criteria to advance the guarantee’s purposes and prohibit forms of discrimination that violate human dignity. In doing so, Law also ensured that the legislatures would not be prevented from drawing the kinds of distinctions between individuals and groups that are an unavoidable feature of democratic governance.

By adding layers of complexity to the equality analysis, Law has raised the question whether it has become too difficult, today, for claims to succeed under s.15.

9. Ford v. Quebec (Attorney General), [1988] 2 SCR 712; (December 15, 1988)

22 votes

The Supreme Court of Canada held (5-0) that Quebec legislation which prohibited the use of English in outdoor advertising violated s.2(b) of the Charter and could not be saved under s.1. The Court also held that it was permissible for the province to invoke a “standard form” override clause, but that it was impermissible for Quebec to give s.33 retroactive effect to April 17, 1982.

Against the backdrop of Quebec’s opposition to the constitutional reforms of 1982, and the central importance of the Charter‘s language rights, Ford v. Quebec was an important test of the Supreme Court’s resolve. In addressing the s.33 issue, the Court concluded that once certain requirements of form are satisfied, the decision to invoke the override belongs exclusively to the legislatures and is beyond judicial review.

On the question of language, the Supreme Court held that a prohibition on the use of English in outdoor advertising violated s.2(b)’s guarantee of expressive freedom and could not satisfy the requirement of minimal impairment under s.1. That conclusion prompted then Premier Robert Bourassa to enact legislation in response to the Supreme Court’s decision and to rely on s.33 in doing so.

Many are of the view that Quebec’s decision to use the override in the context of English language rights had serious consequences for the Meech Lake Accord, which failed in 1990. Many are also of the opinion that the inflammatory circumstances of the override’s use in this instance placed a deep chill on s.33. At present, the override remains politically unavailable to legislatures who might otherwise take issue with Supreme Court decision making.

8. Vriend v. Alberta, [1998] 1 SCR 493; (April 2, 1998)

24 votes

The Supreme Court of Canada held (8-0) that provincial human rights legislation which excluded sexual orientation from its list of prohibited grounds of discrimination violated s.15(1)’s equality guarantee. To remedy the infringement, the Supreme Court further held (7-1) that sexual orientation should be “read in”, or added, to the legislation’s list of prohibited forms of discrimination.

Like R. v. Askov and Ford v. Quebec, Vriend v. Alberta made headline news across Canada. Though the Court had considered sexual orientation in earlier decisions, Vriend confirmed that s.15 of the Charter prohibited discrimination against the gay and lesbian communities. In this, Vriend provided an important foundation for the Supreme Court’s subsequent decisions in M v. H, [1999] 2 SCR 3 and The Same-Sex Reference, 2004 SCC 79. Whether and when legislation recognizing gay marriage would have been enacted in Canada, absent these decisions, is open to question.

The Court’s decision to read sexual orientation into Alberta’s human rights legislation represents a highwater mark for remedies under the Charter. Though the legislature had made an explicit decision to exclude this ground from its human rights statute, Vriend re-drafted the legislation to include sexual orientation in the list of prohibited grounds of discrimination. In doing so, the Court’s decision moved then Premier Ralph Klein to the brink of a decision to invoke s.33.

Vriend was also the first Supreme Court case to discuss and endorse the concept of a dialogue between the courts and legislatures. Those who favour a theory of review based n dialogue view Vriend as a bold decision on institutional relations. Others are critical of the remedy – and view it as an appropriation of legislative function by the Court – consider Vriend to be more like a ‘monologue’ than a dialogue between the courts and legislatures. Yet another view is that Vriend laid the foundation for a concept of dialogue that has arguably weakened the impact of the constitutional message.

7. R. v. Sparrow, [1990] 1 SCR 1075; (May 31, 1990)

26 votes

The Supreme Court held (6-0) that a charge under the Fisheries Act, against an aboriginal who claimed that his right to fish was protected by the Constitution, is governed by s.35(1) of the Constitution Act, 1982.

Though section 35(1) of the Constitution Act, 1982 is not part of the Charter of Rights and Freedoms, the development of a significant case law under this provision has been an integral part of the Supreme Court of Canada’s rights jurisprudence in the 25 years since 1982. The decision in R. v. Sparrow was a landmark which created a doctrinal framework for the protection of aboriginal rights under s.35(1).

First and foremost, the Court’s opinion in Sparrow articulated a dynamic, progressive and expansive approach to aboriginal rights. In doing so, the Court rejected a frozen rights analysis and defined the extinguishment of aboriginal rights narrowly.

In addition, the Court created a standard of justification that is specific to s.35(1) and parallels the s.1 analysis in Charter cases. In this, Sparrow established a standard for aboriginal rights and forged a link between s.35(1)’s rights and the rights that are protected by the Charter. By setting the s.35 jurisprudence in motion, Sparrow has had a profound effect on relations between aboriginal peoples and the Crown.

6. R. v. Stinchcombe, [1991] 3 SCR 326; (November 7, 1991)

35 votes

The Supreme Court of Canada held (7-0) that the accused has a right of full answer and defence under s.7 of the Charter, and that the duty to disclose applies to all relevant information in the Crown’s possession and extends to all offences.

The decision to impose a duty of Crown disclosure, although purporting to have been based primarily on common law principles, was made possible by the Charter. Even so, there is widespread agreement that Stinchcombe has changed the practice of criminal law more dramatically than any other decision. On the downside, Crown disclosure has added millions of dollars to the cost of prosecuting cases and caused a dramatic increase in the length of trials and in delays in getting cases tried. In that regard, Stinchcombe may have contributed to a perception that the Charter has imposed unacceptable burdens on the criminal justice system. On the positive side, Stinchombe enables the accused to prepare for the defence of cases and has invariably reduced the risks of wrongful conviction.

Crown disclosure, as an aspect of full answer and defence under s.7, brought the rights of the accused into conflict with the rights of victims, particularly the victims of sexual offences. That tension was reflected in key decisions of the 1990s which had a high profile, including R. v. Seaboyer, [1991] 2 SCR 577, R. v. O’Connor, [1995] 4 SCR 411, and R v. Mills.

5. Andrews v. Law Society of British Columbia, [1989] 1 SCR 143; (February 2, 1989)

43 votes

The Supreme Court of Canada held (4-2) that legislation which made citizenship a requirement to practice law in British Columbia violated s.15(1) of the Charter and was not saved by s.1.

Section 15 of the Charter was deferred until1985, and the Supreme Court’s first pronouncement on the equality guarantee, in Andrews v. Law Society of Upper Canada, was met with great anticipation. Several conceptions of equality had been proposed, and it was up to the Court to choose a direction for s.15. That is the context of Mr. Justice McIntyre’s opinion in Andrews, which made fundamental choices about the scope of s.15 and the relationship between the right and its limits under s.1.

The Supreme Court definitively rejected a formal definition of equality based on same treatment in favour of a conception which would focus on remedies for discrimination. In doing so, the Court endorsed an effects-based approach which confirmed s.15’s concern with redressing histories of group-based disadvantage and exclusion. It is notable that the Court limited the scope of s.15 to the grounds enumerated by the guarantee, and to analogous grounds, such as citizenship status.

Even though ten years passed before the Court agreed on a definition of discrimination in Law v. Canada, Andrews chose a model which opened the door to a series of significant decisions under s.15 As one panelist remarked, all that is right and wrong about the s.15 jurisprudence begins with Andrews.

4. R. v. Morgentaler, [1988] 1 SCR 30; (January 28, 1988)

48 votes

The Supreme Court of Canada held (5-2) that Criminal Code provisions which criminalized abortion, except in cases of “therapeutic” abortion, violated s.7 of the Charter and were unconstitutional.

R v. Morgentaler represents a significant Supreme Court foray into a highly controversial moral, ethical and political debate about women’s reproductive rights and abortion. It’s earlier Morgentaler decision, which predated the Charter (1975), failed to support the women’s movement and its goal of legalizing access to abortion. For many, the Court’s second decision in R. v. Morgentaler would become a symbol of the Charter‘s hopes and aspirations. Though earlier decisions attracted widespread public attention, the Court’s decision to invalidate the Code’s framework for therapeutic abortions was a blockbuster.

Rather than address the constitutional status of the right to seek an abortion, the majority reasons focused on the procedural flaws of the legislation. That allowed the Court to invalidate the provisions and at leave room for Parliament to re-enact measures which cured the flaws and retained certain limits on abortion. By virtue of Parliament’s inability to enact successor legislation, abortion has effectively been legalized in Canada.

Morgentaler has had a huge impact on the lives of women and has also exerted a strong influence on the s.7 jurisprudence. To avoid commenting on autonomy and the right to seek an abortion as an aspect of liberty”, the majority reasons turned their attention to “security of the person”. In addition, the majority reasons relied on a concept of “manifest unfairness” to support the conclusion that Parliament’s scheme violated s.7’s principles of fundamental justice. Finally, Madam Justice Wilson’s interpreted “liberty of the person” as a guarantee of “personal autonomy over important decisions intimately affecting … private life”. That definition of liberty has now been adopted by the Court.

3. Hunter v. Southam Inc., [1984] 2 SCR 145; (September 17, 1984)

50 votes

The Supreme Court of Canada held (8-0) that prior authorization is a precondition for a search and seizure to be valid under s.8 of the Charter, and that warrantless searches are prima facie unreasonable under s.8. The Court also held that a s.8 search must be authorized by a person who is neutral and impartial, and capable of acting judicially.

Hunter v. Southam was one of the Court’s first Charter decisions. It was unclear, at the time, how the Court would respond to the Charter, and whether it would adopt a different approach to entrenched rights than to the statutory Canadian Bill of Rights. By adopting a purposive approach to Charter interpretation, Hunter v. Southam gave life to the legal rights provisions and sent the message that the Court intended to take its Charter mandate seriously.

The decision was important in its own sphere, giving rise to a warrant requirement that was nowhere articulated in the previous authority, and setting the stage for an aggressive body of law protecting section 8. The rule of law had a large presence in the late Chief Justice Dickson’s jurisprudence, and it is significant that he took the lead in this decision, making an important and early pronouncement that intrusions on an individual’s privacy must satisfy rule of law requirements. After finding a breach of s.8, the Court provide a judicial remedy, stating, instead, that it was Parliament’s responsibility to bring its legislation into compliance with the Charter.

2. Reference Re B.C. Motor Vehicle Act, [1985] 2 SCR 486; (December 17, 1985)

68 votes

The Supreme Court of Canada invalidated s.94(2) of the Motor Vehicle Act (7-0). The provision made it an absolute liability offence, punishable by imprisonment, to drive while prohibited or suspended from driving. The Court held that s.94(2) interfered with s.7’s guarantee of liberty of the person in a way that violated the principles of fundamental justice.

Section 7 is the Charter‘s most abstract and potentially far-reaching guarantee. That is why those who drafted and negotiated this provision clearly intended that its scope be purely procedural in nature. Then Justice Lamer wrote for a majority in the Motor Vehicle Reference which forged fearlessly ahead to give s.7 a substantive interpretation, against the design of the drafters and the lessons from the United States. The Motor Vehicle Reference has been seen as a major declaration of principle relating to Charter interpretation and the role of the courts, which set the Court’s policy against originalism and approved an expansive approach to Charter.

This decision provided the conceptual framework for the evolution of a significant jurisprudence under s.7. In practical terms, the Motor Vehicle Reference enabled the Court to invalidate the Criminal Code‘s provisions for therapeutic abortion and constructive murder; it provided a foundation for the constitutionalization of defences, including intoxication, duress and abuse of process; it generated the void for vagueness and overbreadth doctrines; and has led to the articulation of a variety of principles of fundamental justice. Most recently, the Court found in Chaoulli v. Quebec, 2005 SCC 35, that provincial legislation which prohibited private health care insurance was an unjustifiable violation of s.7.

Precisely because the boundaries of substantive review are so difficult to define, the s.7 jurisprudence which had its genesis in the Motor Vehicle Reference has provoked some of the most significant debates about judicial review to date.

1. R. v. Oakes, [1986] 1 SCR 103; (February 28, 1986)

88 votes

The Supreme Court of Canada held (7-0) that a reverse onus clause in the Narcotic Control Act, which required an accused to rebut a presumption of possession for purposes of trafficking, violated s.11(d)’s presumption of innocence and was not justifiable as a reasonable limit under s.1 of the Charter.

Without question, Oakes has been the most frequently cited and most dominant decision in the first 25 years of Charter history. Though the Court would have developed a standard under s.1 to test the reasonableness of the legislature’s objective and the means adopted in any event, Oakes is a much more than a test of reasonable limits. It is iconic and a symbol of the Charter‘s goal of maintaining balance between the rights of individuals and the demands of democratic society, and equilibrium between the institutional roles of the legislatures and the courts.

At the time it was decided, Oakes decision moved the section 1 discussion away from the unrealistic comparative law exercise attempted in earlier cases to a structured analysis which focuses the inquiry on each of the key elements of necessity that should be respected before abridging rights in a constitutional democracy. While it is applied contextually and with varying intensity, the Oakes test created the defining methodology of Charter analysis.

By setting a strict standard of justification under s.1, Oakes had a strong influence on the Court’s conception of rights; to avoid a s.1 analysis, the Court has, in some instances, placed definitional limits on the scope of the Charter guarantees. By providing a blueprint on the question of “reasonable limits”, Oakes has also had a powerful influence on governments, particularly in the area of legislative drafting.

Honourable Mentions

11. Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177; (April 4, 1985)

12. R. v. Keegstra, [1990] 3 SCR 697; (December 13, 1990)

13. Schachter v. Canada, [1992] 2 SCR 679; (July 9, 1992)

14. Chaoulli v. Quebec, [2005] 1 SCR 914; (June 10, 2005)

15. Reference Re Provincial Electoral Boundaries, [1991] 2 SCR 158; (June 6, 1991)

16. Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927; (April 27, 1989)

17. Reference Re Remuneration of Judges, [1997] 3 SCR 3; (September 18, 1997)

18. Operation Dismantle v. The Queen, [1985] 1 SCR 441; (May 9, 1985)

19. Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 SCR 313; (April 9, 1987)

20. United States v. Burns, [2001] 1 SCR 283; (February 15, 2001)