On April 17, 1982, the Canadian Charter of Rights and Freedoms became part of the Supreme Law of Canada. Its 25th anniversary seems a good time to look at where the Charter has taken us.
Polls indicate that a majority of Canadians believe it has moved the country in the right direction. However, a significant and increasing number of citizens believe the Charter is soft on crime. Many have suggested it has made the criminal courts unworkable and has led to criminals escaping justice.
They would have a hard time arguing that on the evidence. Properly applied, the Charter is no hindrance to the prosecution of crime.
Consider the case of a young man named Donnohue Grant.
One day, on a sidewalk near a Toronto high school, Grant was stopped and questioned by police, who had noticed him acting strangely.
They first only blocked his path and asked, "Do you have anything you shouldn't?" Grant volunteered that he had "a small bag of weed." Seven minutes later, he admitted that he also had a gun with him.
When his lawyer argued that Grant's Charter rights had been violated, the Court of Appeal for Ontario agreed, but only in principle. True, it said, the police had no right to block Grant's way, but this error was minor compared with the irrefutable evidence of a serious crime.
As Mr. Justice John Laskin put it in the Court's 3-0 decision, "Increasing levels of gun violence in our communities threaten everyone's personal freedom. In this case, where the police did not grossly overstep the bounds of legitimate questioning, acted in good faith, used no force and were patrolling one of Toronto's high-crime areas, I think that the repute of the justice system would suffer if the evidence were excluded."
Courts across the country have consistently followed this same balanced approach. The Charter has been no bar to real law enforcement.
Of course, defence lawyers have a duty to raise all possible arguments to help their clients, but judges, without fail, dismiss frivolous Charter arguments.
Evidence obtained improperly, as in Grant's case, is to be excluded under the Charter only where admitting such evidence would bring the administration of justice into disrepute. Where excluding such evidence would hurt the reputation of justice, as it would have here, the evidence goes in.
Certainly the Charter changed Canada and the way our system works. It made such issues as equality, freedom of speech and freedom of religion matters of law, where before they had been matters of politics. In that sense, yes, the Charter changed what a judge is called upon to do and made civil liberties a matter for courts.
The Charter's effect on criminal law is much less clear. It did ingrain certain procedural rights. For example, the right to a jury trial for serious crimes now had constitutional protection. A significant case law has developed around such sections.
But Canada was not a police state in 1980 and the Charter did not create such procedural standards out of thin air. The rights it protects are, more or less, the same an accused always had.
Properly interpreted, the Charter is a very conservative document – it protects existing rights.
Moreover, the Charter is written with a view to sensible, non-dogmatic, interpretation.
Even where a right has been breached, a remedy only follows if it is appropriate in a free and democratic society. And the "notwithstanding provision" permits a time-limited suspension of many constitutional rights in the event of need.
The Charter is there to protect the rights of Canadians from arbitrary and high-handed governmental interference; it does not exist to stop governments governing. And as a base only for minimum standards, has not interfered in legislative reform. Legislation that strengthens the criminal law will not run afoul of the Charter unless that legislation is very peculiar indeed. Mandatory minimum sentences, strict bail requirements, dangerous offender designations and tough youth criminal legislation are all consistent with the Charter.
Canadian courts have also consistently recognized that Charter rights have limited scope and not only in cases like Donnohue Grant's, involving guns.
Another Ontarian, Ron Horsefield, had his driver's licence suspended temporarily in 1999 on the grounds that there was reason to believe he had driven while impaired. Horsefield argued that his liberty rights as protected by the Charter were impaired.
Ontario's Court of Appeal rejected that for several reasons, and in so doing quoted a Prince Edward Island judge who explained the Charter is intended to protect fundamental rights but not to change Canada or its traditions.
"This should ensure that the principles that we believe are fundamental to a democratic system of government are upheld while, at the same time, ensure that the courts don't become the legislators of society."
The very structure of the Charter suggests its remedies are to be the exception, not the norm.
Where a Charter remedy is sought to overturn federal legislation, the court has to recognize that the collective wisdom of Canada's elected representatives is being called into question. The court must consider that closely and the court generally does.
Applied properly, the Charter can ensure that crime is punished and the reputation of justice enhanced.
With very few exceptions, judges' interpretations of the Charter have been moderate and consistent, clearly recognizing that Parliament, not the judiciary, makes the laws.