The Charter and the Supreme Court, A 25-Year Trial

by Corey Wall · February 21, 2007

To mark the 25th anniversary of our Charter of Rights and Freedoms, several special events and publiations have taken place.

The McGill Institute for the Study of Canada made the Charter the subject of its 2007 conference, held February 14-16: The Charter @ 25 / La Charte @ 25 ans. The Institute for Research on Public Policy published an issue of their magazine, Policy Options, with contributions from many conference participants. In addition, a series of articles (some exceptions from Policy Options) ran in the National Post, and Kirk Makin published an article on the Charter in the Globe and Mail. Links to the newspaper articles are provided at the conclusion of this piece.

Some of the more intriguing tidbits of information on Canadian attitudes towards the Charter can be found in a recent poll by SES Research. Even taken with the grain of salt necessary when considering polling data, the determination that 58.2% of Canadians think the Charter is moving the country in the right direction but only 53.9% feel the same way about the SCC, according to an additional polling question, {{note the margin of error on the poll was +/- 3.1 % 19 times out of 20}} is worthy of the lifting of an eyebrow.

Chief Justice Beverley McLachlin has recognized the transformative role that the Charter has had on the role of the judiciary in her speech The Role of Judges in Modern Society, delivered on May 5, 2001. The Charter has become the main instrument through which the public observes the SCC interacting with Canadian society, which only further emphasizes the importance of paying attention to public sentiment in relation to the document.

Of more immediate concern is the contrast between the the recent public sentiment towards the SCC and the Charter itself. In the The Role of Judges in Modern Society speech, McLachlin C.J. cited a study by the Institute for Research on Public Policy “which found that 77 percent of Canadians were generally satisfied with the way the Supreme Court has been working.” The subtle science of polling may account for some of the drop from 77% to 53.9%, but to suggest that such a wide discrepancy can be written off by the difference between being ‘generally satisfied’ and ‘thinking the Supreme Court is moving the country in the right direction’ seems a little precarious. The question is whether or not this relative drop in confidence, in relation to the SCC, is simply part of a general trend of public attitudes towards their institutions which was recognized by McLachlin C.J. in her speech, or whther there is some other factor that must be identified?

It is all the more important to determine the answer to this question in the face of the more startling finding of the SES poll, which is that only 5% of Canadians equate Charter values with Canadian values. Hearing this how can one read Charter cases that refer to Canadian values in their analysis the same way?

At 25, the Charter’s significance continues to grow, as it is applied to more aspects of Canadian life. As part of our constitutional ‘living tree,’ however, it needs to grow in such a manner that Canadians see Charter values as their own. It is this task that our expert arborists on the SCC, as guardians of the Charter, need to keep in the backs of their minds as they continue apply Charter provisions. The challenge is a difficult one, as any sort of discussion of Canadian values easily gets mired in the tension between our multiculturalism identity and attempts to determine broader Canadian values. Or maybe this is why only 5% of Canadians think the Charter reflects Canadian values.

Links to national media articles: