Reasonable Doubt: Happy 30th birthday to Canadian Charter of Rights and Freedoms

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      On April 17, we celebrated the 30th anniversary of the Canadian Charter of Rights and Freedoms. The charter has always been controversial. Its purpose is to tell the government what the boundaries are on its ability to make laws and pursue certain courses of action in relation to individuals. It only applies to the government and government actors (such as the police). The charter guarantees the rights as listed within it to all citizens of Canada. If a law is deemed to violate a charter right, section 52(1) of the Constitution Act, 1982, provides that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”.

      If state action has the effect of violating a person’s charter rights, section 24(1) of the charter states “anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

      Concerns that were voiced in 1982 included the critique that the power to strike down laws was being taken away from democratically elected officials and being handed to non-elected, out-of-touch judges. Another critique dealt with the fear of judicial activism (which in my opinion is an outdated concern that has been proven to be of little threat given the past 30 years of charter jurisprudence). The Supreme Court of Canada, for the most part, has done a good job of upholding the rights of marginalized and vulnerable groups.

      In honour of this anniversary, here are a few examples of landmark charter rulings from our highest court (in the criminal context of course!):

      R. v. Morgentaler (1988): The SCC struck down a law requiring women to obtain a certificate from a therapeutic abortion committee of an accredited or approved hospital before they were able to get an abortion. The SCC held that it violated a woman’s section 7 right to life, liberty, and security of the person through state interference with bodily integrity and serious state-imposed psychological stress.

      R. v. Keegstra (1990): The SCC dealt with a challenge to the hate propaganda law in the prosecution of an Alberta schoolteacher who taught his students that the Holocaust was a hoax and that Jewish people were evil. The SCC upheld the law, holding that it constituted a reasonable limit on freedom of expression.

      R. v. Stinchcombe (1991): Police and prosecutors are legally bound to provide the accused with all evidence that could possibly be relevant to the case to ensure the accused’s right to make full answer and defence.

      Rodriguez v. B.C. Attorney General (1993): The law prohibiting assisted suicide was upheld in a very close 5-4 ruling.

      R. v. Feeney (1997): The SCC excluded all the evidence in a murder trial due to the search of the accused’s home without warrant or reasonable and probable grounds to do so, thus violating the accused’s right against unreasonable search and seizure.

      Most recently, the SCC ruled on Canada (Attorney General) v. PHS Community Services Society (2011). With the Conservatives taking power in Canada, harm reduction was dropped from our nation’s drug policy and the government moved to shut down Insite. The SCC ordered the federal health minister to grant it an exemption from drug laws. Balancing the need for public safety against the need for public health, the SCC found that the benefits to the health of drug addicts far outweighed any detriment to society.

      The charter remains as important as ever. We as a society must remain ever vigilant in the protection of our constitutionally-enshrined rights. Just because the charter’s been around for 30 years, that doesn’t mean everything’s been settled and we can be complacent. Our current government has shown itself to pursue its own agenda with little to no regard for its citizens’ rights. The omnibus crime bill and the proposed online surveillance bill are the perfect examples. Many believe, myself included, that our judiciary will be busy in the years ahead dealing with constitutional challenges to this government’s charter-blind laws.

      Reasonable Doubt appears on on Fridays. The column’s writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at

      A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.




      Apr 22, 2012 at 11:04am

      Thank you for your thoughtful articles.

      I believe in having both strong Laws + Lawyers who help us uphold our rights whether Civil and/or in Criminal cases.

      The Charter & the Constitution is what sets us apart from Putin's Russia, the Junta in Burma and other Totalitarian regimes around the world.

      It is what in large part makes Canada a great Country to live and prosper in, Neo-Con Bots from Alberta not withstand :).

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      John Picur

      Apr 23, 2012 at 3:17pm

      The article overlooks the fact that when you define rights, you limit them. Citizens in our British-based representative democracy have far better protection of their rights under Common Law than under the Charter. Further, Common Law evolves with both the society and its social settings.

      As the United States is finding out in its attempt to function with a two-centuries old Bill of Rights that seems engraved in stone, the Supreme Courts WILL, depending on their composition, become activists outside of the control of the electorate. You have quoted only a few cases which appear to have come out positively. The sum total of the SCC's rulings has not always been so positive or beneficial to Canadians as a whole.

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