(as published in The Montreal Gazette)
Thirty-three years ago, the Charter of Rights and Freedoms officially became part of Canada’s constitution, a landmark event later referred to by former Chief Justice Antonio Lamer as a “revolution in law comparable to the discovery of Pasteur in science.”
Under the charter, Canada moved from being a parliamentary democracy to a constitutional one, Canadian courts moved from being the arbiters of legal federalism – whether a matter is of federal or provincial jurisdiction – to being guardians of our constitutional rights, and Canadians became constitutionally empowered to act upon those rights and assert them as a matter of law.
In the words of former Supreme Court Justice Claire L’Heureux-Dubé, the charter “stretched the cords of liberty,” particularly in the area of equality law.
Yet, at the very time when we should be celebrating this momentous, transformative document, which came into effect April 17, 1982, we have had yet another reminder of the current government’s utter disdain for it.
Indeed, earlier this week, the Supreme Court struck down part of the Conservatives’ so-called “tough on crime” agenda, ruling that, for example, mandatory minimum sentences of three years’ imprisonment for offences such as improper storage of a firearm could constitute cruel and unusual punishment. This should come as no surprise to the government, which was warned about the charter implications of this law when it was first introduced in 2007.
On its own, this case might be viewed as a simple difference of opinion on a question of constitutional interpretation. However, the Conservative government’s approach in this matter is, by now, part of a regrettable pattern: ignore the requirement to vet legislation so that it comports with the charter, enact constitutionally suspect legislation or policy in defiance of the charter, impugn those who raise charter concerns, and spend taxpayer dollars fighting a losing legal battle all the way to the Supreme Court.
Such was the case last year when the court ruled unanimously against the government’s attempt to retroactively eliminate the possibility of early parole for offenders who had already been sentenced. Justice Richard Wagner wrote that this was “one of the clearest cases of retrospective double punishment,” and thus a blatant charter violation.
Likewise, in 2011, the court unanimously ruled that, by refusing to renew the permit of a safe injection site in Vancouver, the government was violating charter guarantees to life, liberty and security of the person. According to Chief Justice Beverley McLachlin, the refusal threatened the health and lives of Canadians with drug addictions, and “contravened the principles of fundamental justice.”
Indeed, the courts have found that Conservative law and policy have violated charter rights in matters as varied as the refusal to repatriate a Canadian wrongfully imprisoned in Sudan; the mandatory imposition of the victim surcharge – a supplementary fee paid at sentencing – on impoverished offenders; and the denial of health care to refugee claimants.
In the latter case, Federal Court Justice Anne Mactavish made particular reference to the impact of that denial on claimants’ children, saying that it could “potentially jeopardize the health, the safety and indeed the very lives of these innocent and vulnerable children in a manner that shocks the conscience and outrages Canadian standards of decency.”
Moreover, many other government measures are currently being challenged on charter grounds in lower courts. For example, in a case in B.C., the government stands accused of using solitary confinement in federal prisons in a way that discriminates against aboriginal inmates and the mentally ill, and that violates international standards prohibiting prolonged isolation.
While solitary confinement is supposed to be used as a last resort, figures I obtained from the government in response to written questions indicate that over 20 per cent of prisoners spend time in solitary, and Correctional Investigator Howard Sapers has found that solitary confinement is now “a default population management strategy.”
The government declined to answer my questions about the length of isolation periods, or about the physical and mental health impacts of solitary confinement. It did, however, respond with an unqualified “no” to questions from my colleague, Liberal Public Safety Critic Wayne Easter, about whether it had received any analysis or advice on the constitutionality of its approach.
Ultimately, beyond the unnecessary expense and strain on judicial resources that result from knowingly implementing constitutionally problematic measures, the trouble with treating the charter as an obstacle to be overcome – or a triviality to be ignored – is the very content of the charter itself. The rights and freedoms it guarantees are an expression of Canada’s fundamental values, and a safeguard against discrimination, inequality and the marginalization of the vulnerable. By minimizing the charter, the government minimizes the values enshrined therein.
What is more, the government’s responsibility to take charter considerations into account when drafting legislation is not only a moral one – it is, in fact, a legal requirement. Section 4.1 of the Department of Justice Act obliges the justice minister to examine all government bills “in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions” of the charter, and to “report any such inconsistency to the House of Commons at the first convenient opportunity.” That no Conservative minister has ever tabled such a report – despite repeated warnings of potential unconstitutionality from the opposition and legal experts, and despite repeated confirmation from the courts that such warnings were well-founded – suggests that the government treats this law and the charter with equal defiance.
In fact, a justice department official has come forward claiming that, according to government policy, no report of charter inconsistency is deemed necessary as long as a bill has at least a 5-percent chance of being upheld. I have, therefore, introduced a private member’s bill that would shift the responsibility for the prospective examination of charter compliance from the Minister to House of Commons officials.
It is deeply regrettable, however, that such a bill is necessary. The charter was a parliamentary initiative – not a usurpation of Parliament, as is sometimes alleged – that came to fruition 33 years ago. All the more reason for Parliamentarians of all political stripes to treat it and the values it represents with respect.