The Political Impact of the Canadian Charter of Rights and Freedoms

Canadian Journal of Political Science

Volumn 20, Issue 1, 1987, Pages 31-55

  Morton, F L ^a  

^a UNIVERSITY OF CALGARY   (Canada)

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EID: 84974183647     PISSN: 00084239     EISSN: 17449324     Source Type: Journal    
DOI: 10.1017/S0008423900048939     Document Type: Article

References (82)

1. Martin L. Friedland, “Criminal Justice and the Charter,” Manitoba Law Journal 13 (1983), 551.
2. See Peter H. Russell, “The First Three Years in Charterland,” Canadian Public Administration 28 (1985), 376–96, at 394.
3. For a detailed account, see Peter W. Hogg, “A Comparison of the Canadian Charter of Rights and Freedoms with the Canadian Bill of Rights,” in Walter Tarnopolsky and Gerald A. Beaudoin (eds.), Canadian Charter of Rights and Freedoms: Commentary (Toronto: Carswell, 1982), 2–24.
4. Orientals and Indians have been mistreated by Canadian governments. Indians in Canada have fared somewhat better than their American counterparts, but Orientals somewhat worse. Still, there has been nothing comparable in scope and harshness to the “Jim Crow” regime in the United States. See Thomas Berger, Fragile Freedoms: Human Rights and Dissent in Canada (Toronto: Clarke, Irwin, 1981); and M. James Penton, “Collective versus Individual Rights: The Canadian Tradition,” in William R. McKercher (ed.), The U.S. Bill of Rights and the Canadian Charter of Rights and Freedoms (Toronto: Ontario Economic Council, 1983), 174–83.
5. For an instructive discussion of this issue, see Ian Greene, “Legislative Supremacy in Post-Charter Canada,” paper presented at the annual meeting of the Canadian Law and Society Association, Winnipeg, Manitoba, June 1986.
6. See the final section of this article.
7. W. L. Morton, The Canadian Identity (Toronto: University of Toronto Press, 1961), 86.
8. This is the thesis of Peter Russell, “The Effect of a Charter of Rights on the Policy-Making Role of the Canadian Courts,” Canadian Public Administration 25 (1982), 1–33.
9. See F. L. Morton and L. A. Pal, The Impact of the Charter of Rights on Public Administration, Canadian Public Administration 28 (1985), 221–43.
10. Dickson, CJ. Hunter v. Southam Inc. [1984] 2 S.C.R. 145, 155.
11. LeDain, J. R. v. Therens, [1985] 1 S.C.R. 613, 18 D.L.R. (4th) 655.
12. Wilson, J. Singh v. Minister of Employment and Immigration Board, [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 442.
13. Law Society of Upper Canada v. Skapinker 9 D.L.R. (4th) 161.
14. Hunter v. Southam Inc. [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641. The Chief Justice was quoting American constitutional scholar, Paul Freund.
15. The Queen v. Big M Drug Mart 18 D.L.R. (4th) 321.
16. Operation Dismantle v. the Queen 18 D.L.R. (4th) 481, [1985] 1 S.C.R. 441.
17. Reference re British Columbia Motor Vehicle Act. [1985] 2 S.C.R. 486, 24 D.L.R. (4th) 536.
18. Ibid.
19. Quebec Protestant School Bd. v. A.-G. Quebec, [1984] 2 S.C.R. 66, 10 D.L.R. (4th) 321; Hunter v. Southam Inc., [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641; Singh v. Minister of Employment and Immigration Board, [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 442. the Queen v. Big M Drug Mart Ltd., [1985] S.C.R. 295, 18 D.L.R. (4th) 321. R. v. Therens, [1985] 1 S.C.R. 613, 18 D.L.R. (4th) 655; Dubois v. the Queen, 23 D.L.R. (4th) 503; B.C. Motor Vehicle Reference, [1985] 2 S.C.R. 486, 24 D.L.R. (4th) 536; R. v. Oakes, [1986] 1 S.C.R. 103. Clarkson v. the Queen, [1986] 1 S.C.R. 383.
20. Law Society of Upper Canada v. Skapinker, 9 D.L.R. (4th) 161; Operation Dismantle Inc. v. the Queen, [1985] 1 S.C.R. 441, 18 D.L.R. (4th) 481; Valente v. the Queen, 24 D.L.R. (4th) 161; R. v. Spencer, [1985] 2 S.C.R. 278, 21 D.L.R. (4th) 161.
21. Krug v. the Queen, 21 D.L.R. (4th) 161.
22. There were only five Bill of Rights cases in which an individual won the case against the government. In only one case—Drybones v. The Queen, [1970] S.C.R. 282—was a statute declared invalid. The four other cases are Brownridge v. the Queen, [1972] S.C.R. 195 (right to counsel before taking breath test); Lowry and Lepper v. the Queen, [1974] S.C.R. 195 (right to hearing before sentencing); A.-G. Ontario v. Reale [1975] 2 S.C.R. 624 (right to an interpreter during judge's charge to the jury); R. v. Shelley [1981] 2 S.C.R. 196 (reverse onus clause overbroad).
23. Of the six, four were federal and two were provincial. The federal statutes included the Lord's Day Act, the Anti-Combines Act, the Narcotics Control Act, and the Immigration Act. The provincial statutes were Quebec's Bill 101 (Charter of the French Language) and the British Columbia Motor Vehicle Act.
24. Big M Drug Mart overruled Robertson and Rosetanni v. the Queen, [1963] S.C.R. 651. Therens overruled Chromiak, [1980] 1 S.C.R. 471. Dubois overruled R. v. Brown No. 2, [1963] S.C.R. vi, 3 C.C.C. 341n. Oakes overruled Appleby.
25. All statistical measurements are from F. L. Morton and Michael J. Withey, “Charting the Charter—1982-1985: A Statistical Analysis,” Canadian Human Rights Yearbook 1986 (forthcoming).
26. [1985] 1 S.C.R. 613, 18 D.L.R. (4th) 655.
27. Seymour Martin Lipset, “Canada and the United States: The Cultural Dimension,” in Charles F. Doran and John H. Sigler (eds.), Canada and the United States (Englewood Cliffs: Prentice-Hall, 1985), 129.
28. John Hagen and Jeffrey Leon, “Philosophy and Sociology of Crime Control,” in Harry M. Johnson (ed.), Social System and Legal process (San Francisco: Jossey-Bass, 1978), 182 (cited in Lipset, “Canada and the United States,” 129).
29. See A. Kenneth Pye, “The Rights of Persons Accused of Crime Under the Canadian Constitution: A Comparative Perspective,” Law and Contemporary Problems 45 (1982), 221–48.
30. Prior to the Charter, Canadian courts had explicitly rejected any “automatic” exclusionary rule in cases where police obtained evidence illegally. The leading cause is Hogan v. the Queen [1975] 2 S.C.R. 574.
31. Dubois v. the Queen, [1985] 2 S.C.R. 350, 23 D.L.R. (4th) 503.
32. R. v. Oakes, [1986] 1 S.C.R. 103.
33. The Queen v. Big M Drug Mart 18 D.L.R. (4th) 321; Edwards Books v. the Queen, unreported.
34. National Citizens' Coalition Inc. v. A.-G. Canada [1985] WWR 436.
35. see G. Pyrcz, “Pressure Groups,” in T. C. Pocklington (ed.), Liberal Democracy in Canada and the United States (Toronto: Holt, Rinehart, and Winston, 1985), 341–74.
36. A. Paul Pross, “Pressure Groups: Adaptive Instruments of Political Communication,” in A. Paul Pross (ed.), Pressure Group Behaviour in Canadian Politics (Toronto: McGraw-Hill, Ryerson, 1975), 18.
37. Operation Dismantle v. the Queen 18 D. L.R. (4th) 481, [1985] 1 S.C.R. 441.
38. A.-G. Quebec v. Quebec Association of Protestant School Boards 1984, 10 D.L.R. (4th) 321, [1984] 2 S.C.R. 66.
39. R. v. Morgentaler, Ontario Court of Appeal, Oct. 2, 1985, unreported.
40. For an account of the trial before the Saskatchewan Court of Queen's Bench, see Anne Collins, The Big Evasion: Abortion—The Issue that Won't Go Away (Toronto: Lester and Orpen Dennys, 1985), 44-52, 67-71. For an account of the hearing before the Court of Appeal of Saskatchewan, see F. L. Morton, “Fetus's Rights the Issue as Abortion Battle Resumes,” National, vol. 13, no. 1 (January 1986), 8.
41. The feminist lobbying effort is described in L. A. Paland F. L. Morton, “Bliss v. The Attorney General of Canada: From Legal Defeat to Political Victory,” Osgoode Hall Law Journal (forthcoming).
42. M. Elizabeth Atcheson, Mary Eberts, and Beth Symes, Women and Legal Action: Precedents, Resources and Strategies for the Future (Ottawa: Canadian Advisory Council on the Status of Women, 1984), 163.
43. Charter of Rights Educational Fund, Report on the Statute Audit Project (Toronto, 1985).
44. Women's Legal Education and Action Fund information letter, undated but released sometime in late 1985.
45. “Ministers Announce Extension of Court Challenges Program,” Government of Canada official news release, Sept. 25, 1985, 2.
46. For a treatment of the changing institutional and procedural dimensions of the
47. Supreme Court of Canada, see F. L. Morton, “The Politicization of the Supreme Court of Canada,” paper for the 13th World Congress of the International Political Science Association, Paris, July 1985.
48. See Jillian Welch, “No Room at the Top: Interest Group Intervenors and Charter Litigation in the Supreme Court of Canada,” University of Toronto Faculty of Law Review 43 (1985), 204–31.
49. Ibid. Also see Kenneth P. Swann, “Intervention and Amicus Curiae Status in Charter Litigation,” paper presented at the Charter Litigation Symposium, Faculty of Law, University of Toronto, February 28, 1986.
50. Kenneth McNaught, “Political Trials and the Canadian Political Tradition,” in M. L. Friedland (ed.), Courts and Trials: A Multi-Disciplinary Approach (Toronto: University of Toronto Press, 1975), 137–61.
51. This “nation-building” potential of the Charter is developed at length in Rainer Knopff and F. L. Morton, “Nation-Building and the Canadian Charter of Rights and Freedoms,” in Alan Cairns and C. Williams (eds.), Constitutionalism, Citizenship, and Society in Canada (Toronto: University of Toronto Press, 1985), 133–82.
52. See Russell, “Charterland,” 382.
53. Reference re Education Act of Ontario and Minority Language Education Rights (1984), 10 D.L.R. (4th) 491.
54. See Donald V. Smiley, “The Structural Problem of Canadian Federalism,” Canadian Public Administration 14 (1971), 328; also Roger Gibbins, Regionalism: Territorial Politics in Canada and the United States (Toronto: Butterworths, 1982).
55. David Kwavnick, “Interest Group Demands and the Federal Political System: Two Canadian Case Studies,” in Pross (ed.), Pressure Group Behaviour, 70–86, at 77.
56. This is an abbreviated version of the argument developed in Roger Gibbins, Rainer Knopff, and F. L. Morton, “Canadian Federalism, the Charter of Rights, and the 1984 Election,” Publius 15 (1985), 155–69.
57. The Ontario Film and Video Appreciation Society and Ontario Board of Censors (1983), 147 D.L.R. (3d) 58.
58. (1983), 5 D.L.R. (4th) 766. Discussed in Russell, “Charterland,” 59, 378–79.
59. Because the Constitution Act, 1982 was adopted without the consent of Quebec, Premier Lévesque and many other political leaders in Quebec viewed it as unconstitutional. Lévesque's argument was subsequently heard and rejected by the Supreme Court of Canada. See Roy Romanow, John Whyte and Howard Leeson, Canada Notwithstanding: The Making of the Constitution 1976–1982 (Toronto: Carswell, 1984), chap. 8.
60. The Devine government claimed that it was protecting its “back to work” legislation from an earlier Charter precedent that overturned a similar law.
61. See Howard Leeson, in the Regina Leader Post, February 4, 1986, and the Ottawa Citizen, February 8, 1986.
62. See Dale Eisler, Regina Leader Post, January 23, 1986.
63. Early examples are discussed in Gerald Rubin, “The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law,” in W. R. Lederman (ed.), The Courts and the Canadian Constitution (Toronto: McClelland and Stewart, 1964), 220–48, at 226. Much of the abuse and ensuing controversy over the constitutional reference was caused by its ambiguous relation to the federal government's disallowance power. On this see Jennifer Smith, “The Origins of Judicial Review in Canada,” this journal 16 (1983), 115–34. In both instances the source of the problem is the difficulty of making a hard and lasting distinction between “policy issues” and “legal issues.” For an explanation of how this dilemma led to the demise of the disallowance power, see Robert C. Vipond, “Constitutional Politics and the Legacy of the Provincial Rights Movement in Canada,” this journal 18 (1985), 267–94, at 282–84.
64. The potential for abuse is heightened by the ability of a government, directly or indirectly, to refer the legislation of a second government to its own court of appeal. In the most notorious modern case—“The Chicken and Egg Reference”—the Manitoba government persuaded its own Court of Appeal to declare an Ontario Marketing policy unconstitutional. This case is analyzed by Paul Weiler, In the Last Resort: A Critical Study of the Supreme Court of Canada (Toronto: Methuen, 1974), 156–64.
65. Joe Borowski came from this rural, Catholic Saskatchewan society, and later was an NDP cabinet minister in Manitoba until he resigned in protest of public funding of abortions in 1972.
66. Bill 53, also styled as the “Freedom of Informed Choice (Abortions) Act,” had two basic provisions. The first was a consent requirement for husbands of married women and the parents of minors. The second was a requirement that women desiring an abortion must first be read a description of the probable age, physical characteristics, and abilities of the unborn child; a description of the abortion procedure and its medical risks; and a list of public and private agencies available to assist the woman to carry the child to term.
67. See the Regina Leader Post, June 11 and 12, 1985.
68. Reference re The Freedom of Informed Choice (Abortions Act), (1986), 44 S.R. 104. The Court of Appeal ruled that Bill 53 trenched upon the federal government's Criminal Code jurisdiction and so was ultra vires. The Charter issue was not reached.
69. Reference re Education Act of Ontario and Minority Language Education Rights (1984), 10 D.L.R. (4th) 491.
70. See Russell, “Charterland,” 382–83.
71. The term is taken from Russell (ibid.).
72. Globe and Mail, March 29, 1985.
73. Globe and Mail, April 26, 1985.
74. See Peter Russell, “The Political Purposes of the Canadian Charter of Rights and Freedoms,” The Canadian Bar Review (March, 1983), 30–54, at 51.
75. Ibid.
76. The anti-majoritarian and unaccountable character of judicial review give it a prima facie undemocratic character. See Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill Co., 1982), chap. 1.
77. Because of the periodic but constant change of judicial personnel through appointments by the political executive, final appellate courts cannot “obstruct” indefinitely the policy initiatives of enduring political majorities. See Robert A. Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law 6 (1957), 279–95.
78. For a very instructive elaboration of the constitutional supremacy-judicial supremacy dilemma in US politics, see John Agresto, The Supreme Court and Constitutional Democracy (Ithaca: Cornell University Press, 1984). Ironically, Agresto at times seems to be looking for something like the Canadian section 33, legislative override as a solution: “To have subjected judicial ‘vetoes’ to the same process of review as that to which the Constitution subjects presidential vetoes would have been the most unobjectionable method of combining the benefit of active judicial reasoning and scrutiny with final democratic oversight” (134–35).
79. Russell, “Policy-Making,” 32.
80. This distinction was the cornerstone of Hamilton's famous defence of judicial review in Federalist No. 78.
81. See Harry Jaffa's discussion of the problem of moral tyranny in modern politics in his Crisis of the House Divided: An Interpretation of the Lincoln-Douglas Debates (Seattle: University of Washington Press, 1959), 243–45, 271–72.
82. Alexander Bickel, The Morality of Consent (New Haven: Yale University Press, 1975).