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The Charter at 20Reporter: Joan LeishmanConstitutional lawyer
Rocco Galati says his many Arab clients are targets of suspicion
and are being dealt with unjustly because of Canada's anti-terrorism
law. He contends the new law violates both the letter and the spirit
of the Charter of Rights and Freedoms. |
 "We know that justice and generosity can flourish only in an atmosphere of trust. For if individuals and minorities do not feel protected against the possibility of the tyranny of the majority, if French-speaking Canadians or native peoples or new Canadians do not feel they will be treated with justice, it is useless to ask them to open their hearts and minds to their fellow Canadians." – Pierre Trudeau, April 17, 1982 |
But security at what cost?
Galati insists his clients are not a threat and yet, he says their fundamental charter rights are being pushed aside.
"The rule of law, the respect for human rights, human dignity, the rights against arbitrary detention, the rights to know what you're going to be charged with, if your liberty is going to be taken away, the right to bail while you're accused… all those rights are gone," he says.
This worries Mohammed ElMasry, an engineering professor at the University of Waterloo and president of the Islamic Congress of Canada.
ElMasry is preparing to challenge the new law in the courts. He says Muslims in Canada have been pulled off buses and pulled off the streets for questioning, without being told why. In the United States, more than 1,000 have been jailed.
But under the secrecy of the new law, ElMasry says he has no idea how many Muslims in Canada may be detained.
 Mohammed ElMasry |
This is only one of the many debates to emerge over what the charter means for Canadians. In the last 20 years, it has been a rocky and often acrimonious voyage of discovery as people stepped forward to claim their individual rights.
 Prime Minister Pierre Trudeau looks on as Queen Elizabeth II signs Canada's Constitution on April 17, 1982 CP picture archive (Ron Poling) View larger image |
On April 17th, 1982, Trudeau brought home the Constitution from England. It was a moment of intense national pride. And along with the Constitution, Canadians were given a homegrown Charter of Rights and Freedoms.
Despite the pride and celebrations back then, few people had any idea what the country was in for.
Professor Peter Russell was an independent advisor on the charter. He recalls being summoned to a parliamentary committee to explain to the politicians what the charter might mean.
"They kept asking me, well for instance 'Would it have anything to do with abortion?'" says Russell. "I said, 'Damned if I know, it all depends on the judges.' 'It depends on the judges?' I said, 'Yeah.' I said 'Let me tell you about the Americans.' 'Oh tell us professor.' I told them about Roe v. Wade. They didn't know about that. Their eyes popped open. 'You mean they found a right of abortion of a woman having an abortion?' I said 'Sure they did.' 'Oh my, isn't that something.' They were absolute babes in the woods."
"Many of us had to struggle with our personal
views as regards to abortion and try to put them aside and say,
'Well, what is best for Canadian
society?'"
Former Chief Justice of the Supreme Court Antonio Lamer says the judges on the highest court in the land were surprised too.
 Antonio Lamer |
The Supreme Court now had the job of deciphering which laws did not abide by the charter. Right off the bat, Lamar and other Supreme Court judges had to look at abortion.
"Many of us had to struggle with our personal views as regards to abortion and try to put them aside and say, 'Well, what is best for Canadian society?'" he says.
Abortion was one of the hottest, most divisive issues in the country. As the court tried to decide whether abortion laws went against the charter, towns and cities were convulsing with protests.
 Dr. Henry Morgentaler |
But if any one group has gained most from the charter it is the criminally accused.
One of the most renowned cases was over the "rape shield law," which protected a rape victim from having to reveal her sexual history. In 1985, two Toronto men were convicted of sexual assault. They later challenged the rape shield law, arguing that it violated their rights to a full defence. The court agreed.
It was a decision that stunned many women's groups, fearing the victims of rape might now not take their cases to the courts.
Striking down the rape shield law was one of many rulings that would give greater protections to the criminally accused. The court would also decide they had the right to a lawyer when being questioned and the right to a trial within a reasonable time frame.
But Peter Russell says most importantly it gave the criminally accused the right to know what evidence is being used against them.
"They can't hide new evidence from the accused," he says. "So it's meant there's a more level playing field between prosecution and defence in the criminal justice system. For the criminal justice system, it is the part of our system of government that has been most changed in a concrete way by the charter. No doubt about that."
For the criminally accused, the new charter rulings would profoundly affect their day-to-day lives. But for one group the everyday struggle hasn't change much at all.
David Lepofsky advocates for the rights of the disabled and is one of the country's leading constitutional lawyers. As a law student in 1982, Lepofsky went before the committee drafting the charter. He called for disabled people to be included in the equal rights provision, an argument he finally won.
 David Lepofsky |
"We've made some progress, there's no question," says Lepofsky. "A number of cases have been decided by our courts on disability issues. Some are good decisions, some aren't and there haven't been as many as we need and would like.
"What we need is legislation that will effectively implement those rights without people with disabilities having to be equality cops suing one barrier at a time. Life's too short, and people with disabilities don't have the cash to fight those lawsuits."
If there is any group that's learned the power of persistence, it's gays and lesbians. Sexual orientation was not included in the charter, but that hasn't stop homosexuals from marching to the courts.
At the forefront demanding they be afforded equal rights was Jim Egan. Egan and John Nesbitt lived together for 50 years. In 1995 they argued they should receive spousal benefits under the Old Age Security Act. The Supreme Court said no.
 Delwyn Vriend (left) |
Vriend contended he was fired from his job at a college in Edmonton because he is gay. But Alberta's Human Rights Commission refused to investigate because provincial laws did not forbid discrimination based on sexual orientation.
In 1998, the case ended up at the Supreme Court. It ruled the exclusion violates the charter. Initially, Alberta Premier Ralph Klein's government fought against changing things.
Klein had to decide if should he invoke the charter's "nothwithstanding clause" allowing him to over turn the court's ruling. After much heated debate, his government decided not to.
The ruling on Delwyn Vriend fired up one of the strongest critics of the judicial system. On a recent book tour at the University of Toronto, former U.S. Solicitor General Robert Bork slammed Canada's Supreme Court for going too far and meddling in politics.
 Robert Bork |
Bork condemned the courts in the U.S. and Canada of quietly stealing power away from elected representatives.
"What we are seeing is a very slow coup d'etat," he says. "It's gentile, it's gradual, but it's a coup d'etat, nonetheless."
 Beverly McLachlin |
Former Chief Justice LeMar says if anything, it's the courts that have been asked to rule on issues the politicians don't want to touch themselves.
There's no tougher issue that federal and provincial governments have tried to avoid than dealing with the long-standing grievances of the First Nations. The Charter enshrines aboriginal rights, which means no government can take them away. This has given First Nations leverage to use the charter and the courts to rekindle stalled negotiations.
In the Delgamuukw case, the Skeena Indians in British Columbia claimed title to more than 58,000 square kilometres of land. The Supreme Court did not grant that but it did urge the province to get back to the table and deal with the claim that began in the lower courts 13 years earlier.
In the case of Burnt Church, tempers exploded. Here, Donald Marshall was arrested for fishing illegally. However, Marshall and the Mi'kmaq in New Brunswick argued their treaty rights are enshrined in the charter. The Supreme Court agreed, saying the Mi'kmaq had a right to catch fish to make a moderate living.
Some Mi'kmaq took that to mean they could fish "when" and "where" they liked, which lead to violent confrontations with other fishermen. The dispute remains unresolved, now a political issue rather than a legal one.
As Canadians fought for equality under the Charter over the last 20 years, it's often seemed as if the country was being torn apart. But even so, most still believe the charter has gone a long way in advancing Pierre Trudeau's vision of a stronger, more united, more tolerant nation.
"We have developed in Canada what I'm very proud of," says LeMar. "We have developed a human rights culture which is more important than the charter itself."
"We found ourselves a targeted group, now that
the charter has been compromised. We have to speak louder than any
other group because of that."
Like many in the Muslim community, Mohammed ElMasry sees that "human rights culture" as being put in danger. He fears the powers given to police in the anti-terrorism bill are colliding with the individual rights upheld by the charter, rights he and many other Canadian Muslims feel compelled to defend.
"It's a role we didn't ask for," he says. "We found ourselves a targeted group, now that the charter has been compromised. We have to speak louder than any other group because of that. Other people had that role before, the Black and civil liberties movement, the Jews before us and the Italians and the Japanese during the (Second World) War.
 Canadian Muslims |
The Charter does say that our fundamental rights can be restricted if it's justified in a free and democratic society. So are the rights of Canadians being eroded? And if they are, can the government prove it is necessary in the name of national security? Deciding those questions is likely to be next passionate and volatile challenge to the Charter of Rights and Freedoms.
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April 17, 2002: Charter of Rights and Freedoms marks 20th anniversary
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Conference Commemorating the Twentieth Anniversary of the Canadian Charter of Rights and Freedoms being held in Toronto April 12-13, 2002
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