Canada's new charter is pushing issues of rights and freedoms into judicial hands
SHOPPERS in Ontario found many stores open on Sundays during the last Christmas shopping season. The stores were defying the Ontario Retail Holidays Act, figuring that obligatory Sunday closing violated the Charter of Rights and Freedoms - Canada's five-year-old bill of rights. Canada's Supreme Court disagreed. Though the court had ruled that a federal law, the Lord's Day Act, violated the freedom of religion provision in the charter, it decided that the Ontario legislation had merely a secular purpose - to provide for a day of rest. Thus, the residents of Canada's most populous province nowadays find most stores shut tight on Sundays.Skip to next paragraph
Subscribe Today to the Monitor
This illustrates the increasing impact the charter is having on Canadian affairs as court cases move up through the judicial system.
Robert Fulford, who has just resigned as editor of Saturday Night, an influential Canadian magazine, has dubbed it the ``Charter of Wrongs,'' saying it reflects ``the principle that judges know better than politicians what is good for everyone.'' He further regards the charter as contributing to ``the Americanization of Canada'' - a negative comment in most Canadian eyes.
On the contrary, Edward Ratushny, a professor of law at the University of Ottawa, says: ``Without question, Canadian society is much better off for having a charter. It is one important method for addressing an infringement of rights.''
At the end of this month, some 28 of the top legal minds in Canada and the United States will meet to discuss constitutional rights. Chief Justice Brian Dickson of the Supreme Court of Canada and Chief Justice William Rehnquist of the United States Supreme Court will jointly hold the first-ever Canadian-American legal exchange.
In Canada, the nine supreme court justices are still distant figures, not nearly as well known to the public as is the case for their counterparts in the United States. There are no confirmation fights, like that facing American judge Robert Bork. The executive branch alone appoints them, heeding a constitutional provision that three must come from Quebec.
Nonetheless, Canadians are taking greater notice of their court and the Charter of Rights, as they experience more of what Mr. Fulford calls ``judge-made law.''
In late June, for instance, despite a charter prohibition of discrimination based on religion, the court ruled unanimously that government financing of Ontario's Roman Catholic high schools is constitutional. The ruling was based on specific education rights granted to Catholics in Ontario when the Canadian federation was formed 120 years ago.
Using the charter, the Supreme Court has struck down a Manitoba law forcing teachers to retire at age 65. It has forbidden the city of Montreal from barring youths under age 18 from pool halls and video game parlors.
Some Canadian police are upset by the charter, finding it complicates their lives by requiring them to follow more stringent practices in making arrests and acquiring evidence. They believe it sometimes makes it more difficult to obtain convictions. Court rulings make speedy trials obligatory and have expanded the right of a defendant to a lawyer.
The new charter has already been used by hundreds of litigants in various court cases, some making it through various appeals to the Supreme Court here.
In April, for instance, the court ruled 4 to 2 that the charter does not guarantee the right of employees to strike or to bargain collectively. In three separate judgments, the court said governments can curtail the collective bargaining system by limiting salary increases, by prohibiting strikes or lockouts, and by imposing compulsory arbitration.
Labor leaders expressed their disappointment that the court had given a narrow interpretation of the charter's guarantee of ``freedom of association.''