Canadian Lawyer

w w w . c a n a d i a n l a w y e r m a g . c o m J A N U A R Y 2 0 1 9 31 says Albert, whose research focuses on how countries amend their constitutions. Albert, who was born and raised in the Ottawa area and was a clerk for Chief Justice Beverley McLachlin in 2003, says the perceptions about the Charter in Canada may stem from a lack of knowledge about it and its purpose. "It is like a kaleidoscope. We see what we would like to see. "A problem in Canada is education. When I was growing up in Hull and in Orleans, it was not taught to us. Civic education should start in elementary school," says Albert, who notes that. in some countries such as Japan, this is a focus of the education system at a very young age. Dino Bottos, an Edmonton-based criminal defence lawyer, says that a lack of appreciation of the Charter may be in part because it has been in place for less than four decades. "The Charter is still in its infancy. We are now in only the second generation of people who have grown up with it as part of their daily lives," says Bottos, who heads the Bottos Law Group. He agrees that educating the public about the Charter is important and something that should be a responsibility of the legal community. Bottos also teaches a criminal law and procedure class at the University of Alberta and tries to pass along this message to his students. "I try to instill in them that no matter what area of law they go into, we all have to have regard for Charter rights and they should go out into the world and explain that to friends and relatives [who] are not in the law," he says. The field of criminal law is probably the area where the public is most suspicious about the impact of the Charter. Stories in the media where someone is quoted as saying "the justice system has failed" are almost a daily occurrence. This is even though the Supreme Court has long been thought by criminal law experts as consistently showing considerable deference to the powers of law enforcement. For example, in the landmark case of R. v. Grant in 2009, which re-wrote the legal test for exclusion of evidence under s. 24(2) of the Charter, the majority decision written by McLachlin and Jus- tice Louise Charron outlined the purpose of the inquiry if there has been a breach of rights. "Section 24(2) is not aimed at pun- ishing the police or providing compensation to the accused, but FEDERAL GOVERNMENT: The notwithstanding clause has never been invoked by the federal government. QUEBEC: The Quebec government invoked the notwithstanding clause in every piece of legislation between 1982 and 1985 because of its opposition to the enactment of the Charter. Since then, it has been used occasionally in the province, including in the prohibition on languages other than French on commercial signs. When the five-year term on the clause expired in 1993, the province introduced legislation requiring French on commercial signs to be predominant and ended the outright ban on English. YUKON: It introduced legislation in 1982 that stated that provisions of the act related to the nomination of members of the Land Planning Board operated notwithstanding the equality provisions of the Charter. The legislation, however, never came into force. ALBERTA: The provincial Marriage Act was amended in 2000 to define marriage only as the union between a man and a woman, notwithstanding the provisions of the Charter of Rights and the Alberta Bill of Rights. The Supreme Court of Canada ruled in 2004 that the federal government has sole jurisdiction to determine who is eligible to marry. Following this decision, the Alberta government did not invoke the notwithstanding clause again in 2005 to maintain the definition of marriage in the province. SASKATCHEWAN: The province invoked the clause in 1984 in relation to back-to-work legislation for dairy workers. The legislation was ultimately found to be constitutional by the Supreme Court, so there was no requirement for it to be invoked again after the five-year sunset clause expired. The government introduced the School Choice Protection Act in 2018. It invoked the notwithstanding clause to override a Court of Queen's Bench decision that found it violated the Charter to fund non-Catholic students to go to Catholic schools. The provincial Court of Appeal granted a stay of the decision taking effect until it hears an appeal. The legislation has been passed, but it has not yet been proclaimed into law. Source: Parliament of Canada "THE CHARTER IS STILL IN ITS INFANCY. WE ARE NOW IN ONLY THE SECOND GENERATION OF PEOPLE WHO HAVE GROWN UP WITH IT AS PART OF THEIR DAILY LIVES." THE NOTWITHSTANDING CLAUSE: PAST USE

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