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.
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.''
As with any such document spelling out rights, the meaning of the words must be interpreted by the courts.
``There is policy content right through the charter,'' noted a Justice ministry lawyer. And the Supreme Court justices have chosen to confront these policy issues squarely.
``We didn't ask for it,'' added the lawyer. ``But we sure got it.'' The justices have limited the government's ability to search and discover documents when it brings a case against corporations when, for example, it suspects violations of anti-trust law.
So far the Supreme Court has delivered more than 25 charter judgments and reserved judgment on about 20 other cases.
Important decisions coming up involve abortion and Quebec's language laws.
``Citizens are thinking much more of legal remedies for problems of society,'' says Professor Ratushny. ``It provides new hope for many of them.'' Before, aggrieved citizens would have looked more often to politicians for such remedies, and sometimes they had no success.
To some Liberals in government at the time of the 1982 Constitution Act, the charter serves a second purpose beside protecting individual rights: It promotes Canadian unity.
``As litigation grows,'' former member of parliament Thomas S. Axworthy has written in the Journal of Commonwealth and Comparative Politics, ``so too will the influence of the judiciary in Canadian life.
``And as the Supreme Court increases in importance, so too the national dimension of Canada will expand. Daily, counsel will be using the charter on behalf of their clients. With each application the charter will gain in credibility, and the national values which it represents will implant themselves even deeper into Canadian consciousness.''
What Charter of Rights provides
Canada's Charter of Rights and Freedoms differs in language from the United States' Bill of Rights, but it guarantees basically the same civil liberties and fundamental freedoms.
The 34-section portion of the Constitution Act of 1982 starts out, however, with a provision that will enable Canada's courts to restrain liberty if this turns to license: Section 1 guarantees rights and freedoms ``subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.'' So far, the Supreme Court of Canada has defined narrowly such ``reasonable limits,'' causing some concern in the Justice Department.
The charter also spells out the rights of Canadians to vote in elections for members to the federal House of Commons and provincial legislatures, adding that no House or legislature shall sit for longer than five years. It says Canadians can move to live and work in any province, as well as leave and return to the country. It permits provincial programs to provide special ``affirmative action programs'' for residents if the rate of employment in that province is below that of Canada as a whole.
One charter provision goes considerably further than the US Bill of Rights. It says every individual is equal before and under the law, and rules out discrimination based upon race, national or ethnic origin, color, religion, sex, age or mental or physical disability.
The charter also says English and French are Canada's official languages and itemizes the meaning of this provision regarding Parliament, courts, and minority educational language rights.
The charter protects treaties, and rights that pertain to the aboriginal peoples of Canada, and mentions the goal of preserving and enhancing the multicultural heritage of Canadians.
The Canadian charter does not protect a suspect from being required to testify before a legislative committee or public inquiry in relation to conduct that could subsequently form the basis of a criminal charge.