The Charter at 30: Power to the people, via judges
|The Charter at 30: Power to the people, via judges
by Shannon Kari
On April 17, 1982, the Charter of Rights and Freedoms was signed into law. Constitutional scholar Peter Hogg says the Charter has been been good for Canadians— but with the caveat that the courts now have a bigger role in policy making. Hogg spoke with Shannon Kari, senior editor of The Lawyers Weekly, at the Toronto office of Blake Cassels & Graydon, where he is scholar in residence.
TLW: Has the Charter of Rights, 30 years after it was enacted, developed in the way the framers expected?
Hogg: I think what a political scientist would have to say about the Charter is that it has moved a considerable degree of power to lawyers and judges that was formerly in the possession of legislatures and governments. That was not unpredictable to me. It would not have been unpredictable to political scientists. But I think that wasn’t a widely held public perception, because theCharter was always framed as something that would empower people — individuals. And, of course, in a sense it does. But, it is always through the intermediary of the courts. So, some of that I think is an unfortunate development.
TLW: Was it not set up so that the courts would have to be the conduit?
Hogg: That is right. But I think the courts have taken some unexpected turns and have been to some extent exercising power over policy, which was formerly the role of governments and legislatures…One of the very early Charter cases was the BC Motor Vehicle case. The court said, no, section 7 is not restricted to procedural justice. And that was a case that decided that you couldn’t have absolute liability for a person who was driving without a licence. There had to be some degree of fault before that person could be convicted of driving without a licence. That was an immediate change, an immediate expansion of judicial review. If fundamental justice was simply procedural, that would not have been a breach of the Charter of Rights.
TLW: Now that we are 30 years in, are there clear guidelines on how section 7 is going to be interpreted?
Hogg: No, I don’t think it is predictable. It is now open to persons to challenge laws on the basis that they are overbroad, disproportionate, arbitrary. The court even says that a law that is vague can be struck down under section 7, but they have never actually struck a law down on account of it being vague. I think it would have been very hard for anyone to have predicted how far judicial review would go under section 7. And if we are looking 30 years ahead, this is obviously going to continue to be a major source of judicial review.
TLW: What should courts do so as not to be seen as going too far in judicial review?
Hogg: If you take Chaoulli [Chaoulli v. Quebec (Attorney General), 2005 SCC 35,  1 S.C.R. 791] as an example, the court is really disagreeing with the policy of Parliament and the legislatures about the way a public health care system should be constructed — query whether courts should be entering that field. In other words, where issues of public policy are at stake, should the courts defer to the policy decisions of governments or not? Essentially, what the court has said is no. If it is a breach of the Charter, it is a breach of the Charter. I think the result is, you are certainly moving a lot of policy-making into the courts.
TLW: Which areas will spark more Charter litigation in the years ahead?
Hogg: I think the other provision that will continue to provide a lot of action over the next 30 years is section 15, the equality guarantee. What has happened in section 15 is that the court keeps changing its mind as to what the doctrine is, so every few years — it is astonishing how frequent this has been — every few years, there is a significant change in the rules as to when you have a breach of section 15. I think what that means is that it is quite hard to predict where section 15 will go. The courts have developed various doctrines, which have been designed to limit the scope of section 15, because every law is potentially subject to a section 15 attack. The trouble is they keep struggling with what the various limitations are.
TLW: Do you think the restrictions will be loosened?
Hogg: One of the restrictions on section 15 was that the person complaining had to persuade the court that he was treated differently from other people in the same position — the comparability rule. That idea has been loosened. Another doctrine the court had was that the person making the claim of inequality had to show his human dignity had been impaired…they loosened that requirement. They are still adhering to the requirement that there must be a ground that is listed in section 15 or a ground that is analogous to those listed in section 15. If that were loosened as well, we would end up with a considerable expansion of section 15. But I think it is hard to predict. By the same token, the courts may well decide to contract these rights. That is true of section 7 as well.
TLW: If changes in technology make it easier for the state to potentially infringe your privacy, are the courts likely to apply the principles already established under section 8 to decide if there is a Charterbreach?
Hogg: I think that is an area where the principles are likely to remain the same. I think what is troublesome about section 7 and section 15 is that new principles keep piling on so that it does make it very difficult to predict where the courts are likely to go in the future.
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