Suchergebnisse

When I was asked to give this talk it occurred to me that it might be interesting to think aloud about some of the changes in constitutional law—and in writing about constitutional law—that have occurred since I came to Canada. I am a New Zealander by birth, but I was teaching at the Faculty of Law of Monash University in Melbourne, Australia, when I came to the Osgoode Hall Law School on a one-year visit in the summer of 1970. During that visiting year, the faculty decided to offer me a permanent appointment. This was done over the objection of one of my colleagues, R. J. Gray, who claimed that my lectures would require simultaneous translation, and that I would not meet the height requirements for Canadian citizenship. Anyway I was persuaded to stay (and three years later I became a Canadian citizen).

Section 7 of the Charter of Rights was not intended by the framers to be a provision that authorized extensive judicial review of legislation. The protection of property was deliberately not included in its text in order to reduce its scope — and the potential for judicial review. and the phrase "the principles of fundamental justice" was intended to cover only procedural due process. Contrary to expectations in 1982, over the succeeding 30 years the Supreme Court of Canada has given an expansive interpretation to section 7 and used it to strike down a variety of laws, including the criminalization of abortion, criminal offences that lack the element of mens rea, "overbroad" laws, "disproportionate" laws and "arbitrary" laws. The last three categories permit the Court to review any law that has an effect on life, liberty or security of the person to determine whether the law is in fact fulfilling its objective, or undermining the objective by doing more harm than good. Under these categories, the Court has struck down restrictions on the liberty of convicted sex offenders, restrictions on the liberty of those mentally unfit to stand trial, the prohibition of private health care insurance, and the attempted closing of a safe injection site for drug addicts. at the time of writing, lower courts have struck down the Criminal Code provisions respecting prostitution and physician-assisted suicide, issues that will have to be resolved by the Supreme Court. The 30-year history of section 7 has been remarkable, attracting criticism from those who deplore the shift of policy-making in a democracy from elected legislative bodies to unelected judges. And, of course, there is support for the decisions from those who believe that, even in a democracy, dysfunctional laws should be subjected to an independent, evidence-based review of their impact, especially on individuals who are unpopular or who have little political power. It is hard to predict whether this activist phase, in which the Supreme Court has so greatly expanded judicial review under section 7, will continue into the next 30 years. If so, the n the "career" of section 7 will become even more "brilliant".

The author describes the appointment process that was followed for the appointment of Justice Cromwell to the Supreme Court of Canada. He also describes the recent history of appointments, and in particular the public hearing before a parliamentary committee that was part of the process for the appointment of Justice Rothstein. Although the public hearing was not part of the Cromwell process, it is the policy of the present government — and probably of future governments — to require public hearings for future appointments. The author the refore describes the Rothstein hearing, comments on the criticisms that were made of the hearing, discusses the risks and benefits of holding hearings in future, and concludes that there is public benefit in the continuation of the practice.

It has been 20 years since section 15 of the Charter came into force. In this paper, Professor Hogg traces the "winding course" of judicial interpretation of section 15. The Supreme Court of Canada has changed the ground rules every few years as the judges have journeyed along that winding course. It has been a serious problem for any commentator foolish enough to try and keep a treatise on constitutional law up to date. Professor Hogg discusses the difficulty of applying a guarantee of equality focusing on cases from Andrews to Law and cases subsequent to Law and states that Law has unfortunately supplanted Andrews as the leading case on section 15. The element of human dignity, Professor Hogg points out, effectively sidelines the role of section 1. Section 1 at least had the advantage of providing very carefully structured legal tests and put the burden of proving each step of the way on government not the claimant. The element of human dignity that is now apparently firmly embedded in the jurisprudence is vague, confusing and burdensome to equality claimants. However in unusual cases section 1 justification may still uphold a discriminatory law.

A new book on the Canadian Charter of Rights and Freedoms by two professors from the University of Calgary, F.L. Morton and Rainer Knopff, is entitled The Charter Revolution and the Court Party.1 By the "Charter revolution" the authors refer to the active law- making role assumed by the Supreme Court of Canada since the adoption of the Charter of Rights in 1982.2 By the "Court Party" they refer to a cluster of interest groups promoting Charter rights through litigation.3 The thesis of the book is that these groups have been successful in obtaining changes in the law from the Supreme Court of Canada that could not have been achieved in the representative legislative assemblies. That, they argue, is wrong because it is "undemocratic." I agree that there has been a Charter revolution. I also agree that there is a Court Party, but I will argue that the cluster of interest groups using litigation as their strategy is much broader than the authors acknowledge. I also agree that the effects of these two phenomena have not been wholly beneficial, but I argue that, on the whole, the result is one that enhances rather than usurps a democratic dialogue.

The adoption of the Charter of Rights in 1982 thrust a new role on the Supreme Court of Canada. The Court was required to resolve issues that would formerly have been regarded as matters of policy for the legislative bodies. This article shows that the new policy-making role of the Court has carried over into non-Charter fields, such as federalism, evidence, administrative law, torts, and family law.

The Charlottetown Accord of 1992 was a set of proposals for amendments to the Constitution of Canada. These proposals were designed to achieve a national settlement of a variety of constitutional grievances, chiefly those arising from Quebec nationalism, western regionalism, and Aboriginal deprivation. The Accord was defeated in a national referendum. In the case of Quebec, the defeat of the Charlottetown Accord, following as it did on the defeat of the Meech Lake Accord, has made the option of secession relatively more attractive, but there are sound pragmatic reasons to hope that Quebec will not make that choice. In the case of the West, there is evidence that the westward movement of wealth and political power is resolving regional grievances without the need for constitutional amendment. In the case of the Aboriginal peoples, the settlement of their land claims and their progress towards self-government can proceed under the existing Constitution. Thus the failure of comprehensive constitutional reform should not preclude Canada from managing the tensions that the reform movement was designed to resolve.