Canadian Lawyer

30 J A N U A R Y 2 0 1 9 w w w . c a n a d i a n l a w y e r m a g . c o m I n the weeks after the federal government and all the prov- inces except Quebec agreed on the terms for a Charter of Rights and Freedoms, many of the stories that were pub- lished in major media outlets were less than positive about this significant addition to the Constitution. The Charter was frequently described as "controver- sial" in news stories. As well, there were warnings about public safety. A story by the Canadian Press news agency that ran in December 1981 had the headline, "Charter: Criminal's friend: Mountie." A spokesman for "rank-and-file" RCMP officers stated that the Charter would give too much power to the judiciary. "No mat- ter how eminent or learned the appointees of the court may be, the fact remains they are not accountable to the people for their actions," the spokesman said. "Canadians will no longer be able to assume their streets will remain safe." For the most part, the streets have continued to be safe in Canada. What has not declined, however, is skepticism and blame directed at the Charter by politicians, media and various interest groups. Whether it involves the criminal justice system or any other aspect that impacts Canadian society, unaccountable judges is a talking point that is still frequently invoked, nearly 37 years after the Charter came into force in April 1982. The most recent high-profile example of this took place after Ontario Superior Court Justice Edward Belobaba ruled last Sep- tember that legislation to reduce the size of Toronto city council, introduced after the election campaign had begun, was unconsti- tutional. "I am acutely aware of the appropriate role of the court in reviewing duly enacted federal or provincial legislation and the importance of judges exercising judicial deference and restraint. It is only when a democratically elected government has clearly crossed the line that the 'judicial umpire' should intervene. The Province has clearly crossed the line," stated Belobaba in finding that the law violated the s. 2(b) rights of both candidates and voters in the municipal election. The response from Ontario Premier Doug Ford was immedi- ate. "The judge's decision is deeply troubling. The result is unac- ceptable to the people of Ontario," said Ford, whose Conservative party won 76 of the 124 seats in the provincial election a few months earlier. Ford said he would re-introduce the legislation and, for the first time ever in Ontario, invoke the notwithstanding clause. The Court of Appeal granted the province a stay of the ruling, pending an appeal because it found that while the legislation may be unfair, it was not necessarily unconstitutional. As a result, the notwithstanding clause was not invoked. In his comments after the initial Superior Court decision, however, Ford made clear his opinion about the place of judicial review in our constitutional framework. "We are prepared to use s. 33 again in the future," he said. "It is the people who will decide what is in their best interests for this great province," added Ford, whose party received more than 40 per cent of the popular vote in the June 2018 election. A few weeks later, Francois Legault, the newly elected premier of Quebec, also promised to invoke the notwithstanding clause if it was necessary to enact a law to restrict public sector employees in "positions of authority" from wearing religious head coverings. "If we have to use the notwithstanding clause to apply what we want, the vast majority will agree," the leader of the Coalition Avenir Québec said the day after the provincial election. In the past, the notwithstanding clause has been invoked very sparingly outside Quebec. Even in that province, it happened mostly during the early years of the Charter and focused on French-language issues. The clause was a compromise that the federal government agreed to during the constitutional conference in November 1981 to win the approval of provinces in western Canada. At the time, Prime Minister Pierre Elliot Trudeau, who was opposed to the provision, agreed that it gave the last word to elect- ed representatives, but he doubted it would be used frequently. Similar comments were made by then-Justice Minister Jean Chré- tien. "What the premiers and prime minister agreed to is a safety valve, which is unlikely ever to be used except in non-controversial circumstances," he said at the time. Those predictions have generally proven to be accurate. At a time when so-called "populist" governments have shown an ability to be elected — not only in North America but in parts of Europe — there are questions about whether there is still a signifi- cant political price to pay in Canada for overriding constitutional rights. Ford referred to the power as part of the "toolbox" of provincial powers and not necessarily something to be used sparingly. As well, even though the purpose of the Charter is to protect against state overreach and maintain individual rights including those of disadvantaged groups, there has long been a political benefit in this country in characterizing it as something the "elites" use to impose their values on others. What is not clear is whether the current political climate will have a lasting impact on how the Charter is thought of outside of the legal community. "The Charter continually ranks very high in polls," says Andrew Lokan, a partner at Paliare Roland Rosenberg Roth- stein LLP in Toronto and an adjunct professor in constitu- tional litigation at Osgoode Hall law school. "It is even popular in Quebec." At the same time, these poll results are "in the abstract," he notes. "If you have a localized dispute, it is a ques- tion of the rights of those who may not have a lot of political clout. The abstract support can dissipate." A survey conducted by Statistics Canada in 2013 found that 93 per cent of respondents stated that the Charter is an important national symbol (70 per cent said very important, while 23 per cent said somewhat important). That was slightly more than the flag and even more than hockey, which had a total of 76 per cent very important/somewhat important. The same survey had a response of more than 60 per cent who were proud of the country's Constitution. Of that total, about 20 per cent replied that they were "very proud." Richard Albert, a constitutional law professor at the Univer- sity of Texas in Austin, says the Canadian Charter is respected internationally. "Outside of Canada, the irony is that people look to the Charter and how we govern ourselves as the model,"

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