As we reflect on three decades of the Charter of Rights and Freedoms, do we see the enduring energy and ambition of youth or the pragmatic judgment of maturity? As with many 30 year-olds, the answer is likely a little of both.
Constitutional rights are never self-executing, and so the story of the Charter is as much the story of the Supreme Court. There were many exuberant moments in the early years of Charter jurisprudence where the Dickson Court established the bold direction and new tenor of Charter jurisprudence. The Court’s assertion in Hunter and Southam (1984) that the Charter would be given a “generous” and “liberal” interpretation consonant with its purposes, and in Singh (1985) that “administrative convenience” would not be permitted to justify Charter infringements set important and enduring themes. Early bold decisions such as the B.C. Motor Vehicles Reference (1985) affirmed that the Charter would not be limited to the “originalism” of its drafters intent but would, even more so than the Constitution Act, 1867, be interpreted as a “living tree” – in B.C. Motor Vehicles Reference, that involved extending s.7’s scope to encompass substantive as well as procedural principles of fundamental justice.
Early Charter cases dominated headlines and shaped Canada’s national identity. Decisions such as Morgantaler (1988) (striking down the abortion provision of the Criminal Code) and Rodriguez (1993) (upholding the assisted suicide provision of the Criminal Code) galvanized the media and public discourse. Decisions such as Big M Drug (1985) Keegstra (1990) and Andrews (1989) set the tone for how the Charter would reinforce Canada’s culture of tolerance within a multicultural democracy. With these cases (and even before the Secession Reference (1998)), the Supreme Court emerged as a vital nation-building institution.
There have also been low points where the Court’s approach to the Charter has attracted significant criticism, including NAPE (2004) (where the Court accepted budget cuts could justify the Provincial Government reneging on pay equity claims), Suresh (2002) (where the Court did not accept that deporting a person to a place where they could face torture would in every case shock the conscience of Canadians) and the Labour Trilogy (1988) (where the Court rejected the right to strike) come to mind.
The maturing of the Court in relation to the Charter in recent years has taken two guises.
First, the Supreme Court has been revisiting and refining its approach to key rights, including the Health Services (2007) case, where the Court reversed its labour trilogy approach and recognizing a constitutional right to collective bargaining, Burns (2001) where the Court reversed its earlier view and held that extraditing someone who faced the death penalty violates the principles of fundamental justice, and Martin (2003) where the Court reversed its earlier stance and held tribunals which have the power to decide questions of law also have jurisdiction over the Charter.
The second sign of maturity is a comfort level with the balanced approach to the Charter. While courts continue to issue dramatic rulings striking down Government laws (for example, the recent 2011 Bedford decision striking down the laws criminalizing activities relating to prostitution) and Government actions (most recently, in Insite in 2012, the Court quashed the federal Government’s attempt to shut down supervised injections in Vancouver). At the same time, however, in 30 years, the Court arguably has yet to issue a decision under the Charter which required a substantial reordering of government fiscal priorities (although Chaoulli (2005) came close!). And in cases such as in Khadr (2010), where the discretion of the Government in relation to national security is at issue, the Court has chosen to preserve government discretion where it matters most (in that case, declining to impose a remedy on Government for violating the Charter rights of a Canadian held at Guantanamo Bay).
Some have suggested that the era of dramatic Charter litigation may be coming to an end. I think, by contrast, the Charter’s most significant jurisprudence may lie ahead. For example, there has yet to be a Charter case which has articulated a vision of social and economic rights – many cases, like Gosselin (2002) leave the door open for such an analysis, but 30 years on, that threshold has yet to be crossed. A new test case on the right to housing under the Charter may offer such an opportunity.
The real unsettled question involving the Charter at 30 is not the degree to which it has had an impact on our laws but rather the degree to which it has changed our culture. If there are fewer Charter cases (and even fewer victories for Charter claimants in the future), will it be because the Court is becoming more deferential, Government more risk-averse, or because a generation of lawmakers and policy-makers have grown up with the Charter and embrace its principles? After 30 years, has the Charter changed Canada’s political and constitutional landscape, or is it still a work in progress?