The charter - Articles

In the last generation, Canada has embarked on uncharted waters because two of the traditional pillars of democracy, the judiciary and Parliament, have fundamentally changed. Historically, these two pillars have upheld a free society by the equal application of common values and the protection of individuals from intrusion by the state and from the unlawful acts of others. This is no longer true.

In his application, Justice Rowe asks "Should the Court lead or mirror a shared sense of Justice?" and answers his own question by saying that "it should lead when the time is ripe to do so." His answer echoes the recent decision of Madam Justice Rosalie Abella in the Saskatchewan Federation of Labour case, where she and four colleagues invented for the first time in Canadian history a constitutional "right" to strike.

Wheelchair-bound Joseph Arvay rolled into a parliamentary hearing on Thursday and loudly slammed the Liberal’s draft law on medically assisted dying as fatally flawed,

Nova Scotia 'Cyberbullying Law ' violates Charter Rights. Justice Glen McDougall of the Supreme Court of Nova Scotia also declined a Crown request to suspend his declaration that the law is invalid for 12 months to allow the legislature time to amend it.

B.C. Supreme Court Chief Justice Christopher Hinkson ruled in favour of Trinity Western University, reversing a B.C. Law Society decision to deny accreditation for graduates of its proposed law school who want to practise in the province. In his 43-page decision issued Thursday, Hinkson rebuked the society for breaching its duty of procedural fairness and neglecting to fully consider the school's charter rights before making its decision.

The decision overturns a 2011 Ontario Court of Appeal ruling that found the absence of aboriginals on the jury violated Clifford Kokopenace’s constitutional rights.

The Court’s judgment in Bhasin, cheerfully reported some months ago, had nothing to do with the Charter. It was an apparently mundane common law contract case. But the Court saw it as an opportunity to “make law”. The Supreme Court held that parties to a contract have a “duty to perform their contractual obligations honestly.” This “new duty,” as the Court called it, it based on an “organising principle” of “good faith.” Who could object to honesty and good faith? But what does it mean?

Some people insist on a fair hearing and a trial based on evidence, but Ontario's Attorney General Madeleine Meilleur says this gums up the system. Under her proposal and potentially draconian slippery slope is anyone presumed innocent until proven guilty? Only a judge appointed for life can be presumed impartial or unbiased, and even then, there are problems of judicial bias that have been identified by the Ontario Court of Appeal.

Latest Charter challenge, supported by its lobbyist interveners, seeks that the state must affirmatively do something for someone-- necessarily entails the corollary that your well-being must be reduced.

Staggering costs: A thinly disguised warning to anyone pondering a challenge to wind farms in Ontario. The families, who worry wind turbines near their homes could harm their health, had challenged the constitutionality of Ontario’s approvals process before Divisional Court. “It’s not just a bar to justice; it’s actually a terror tactic,” lawyer Julian Falconer, who represents the families, said in an interview. “This is not about money. The idea is to send a message: ‘We will wipe you out if you challenge us.’?”

When Pierre Trudeau introduced individual rights in 1968, I supported it, although I was one of the many who predicted that the Charter of Rights and Freedoms, adopted in 1982, would turn our judges into chronic and often idiosyncratic meddlers in almost every aspect of life. The recent Supreme Court of Canada judgments have confirmed this widespread fear, which is amplified by the Harper government’s aversion to contentious non-fiscal issues. In this legislative vacuum, courts, usually with feckless glee, interpret generally formulated rights according to their own tastes in social policy or the state of current opinion. Our bench, as my distinguished colleague George Jonas wrote several years ago, is “the zeitgeist in robes.”

The fading notion that the courts, in interpreting the law, should be bound by something — the written text, the historical record, precedent, logical consistency. One by one, the court in recent years has liberated itself from these constraints; with its last two decisions that we find a court seemingly detached from any intellectual moorings whatever

Whether you share the conviction of one critic that the day the charter passed Canada “surrendered any claim to democratic selfgovernment,” or whether you subscribe to the late Chief Justice Brian Dickson’s reported assessment, that the charter transformed Canada from a system of “parliamentary supremacy” into one of “constitutional supremacy,” what is common to both is the suggestion of a fundamental break with the previous order.

The Court seems finally to have realized that continuation of exclusionary rulings involving derivative evidence will sweep away the last vestiges of faith that Canadians once had in our system of criminal justice. There was a time when the essence of our criminal law was its public nature; a time when it was the particular responsibility of police, prosecutors, and judges to enforce it fairly and impartially; a time when we had peace and order in our communities. It was a solemn constitutional trust responsibly carried out on behalf of law abiding Canadians.

'We run the danger of a public perception that this has all become a giant game of Snakes and Ladders that may be wonderful for the lawyers … You can't have the results float totally independent from what really happened, without the Charter becoming viewed as not the statement of basic principles we should all operate on, but a sort of the lawyers technical manifesto,' Judge Doherty said."

The Court shows scant respect for its predecessors in the last 20 years. In the first years after 1982 the Court stumbled about trying to make sense of its new powers. At every opportunity for fifteen years or more the Court has striven to find a right in the Charter that would extend its free supervision of government action under Section 1. Once it finds a right it will tell governments what they must not or must do. A natural pursuit of power the trend is also profoundly stupid. The Court because of its institutional nature and procedures, as much as from the human frailty of its nine members and its irresponsibility, is incapable of governing the country. Yet still it tries.Whoever may be right about the particular issue, the readiness of the Court to overrule itself presents constitutional law in a slow flux. The Court in the next 20s may show no more respect for the McLachlin court than it shows for the Dickson court. There is an implication that constitutional law is a progressive science with new discoveries regularly made. But chiefly the Court's reasons show conceit. It thinks it has got smarter. In fact it is getting stupider.

Justice Douglas Rutherford ruled that the section of the act requiring authorities to prove terrorism offences are motivated "in whole or in part for a political, religious or ideological objective or cause," violates Section 2 of the Charter of Rights and Freedoms.

"You can't have a referendum to override the Constitution of this country." Well then, how do you override it? In the United States, they use Article V of their Constitution. As the locus of their self-government, it has primacy over legislatures, but the people have primacy over it. It is a device, famously, for ensuring on key questions an appeal from the people drunk to the people sober, not from the people to some unspecified but less disgusting entity.

When Canada's Charter era dawned in 1983, Eugene Forsey, the country's pre-eminent constitutional authority, warned that the Charter of Rights and Freedoms would provide "a field day for crackpots ... a headache for judges ... and a gold mine for lawyers."