Canadian Lawyer

32 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 rather at systemic concerns," they wrote. In a decision two years earlier involving a forced entry by balaclava-wearing Calgary police, Justice Thomas Cromwell stressed in R. v. Cornell that the courts are to guard against "Monday-morning quarter-backing" of the operational decisions of law enforcement. Even still, it is not uncommon for police, politicians or the media to echo the sentiments of the RCMP officer in the 1981 article and suggest the Charter is criminal friendly. "You will always have politicians saying it is a scary world. You won't win many elections on protections for the rights of accused persons," says Bottos. At the same time, he suggests that criminal defence lawyers should engage with the media. "One way to educate the public is by answering report- ers' questions. I feel it is appropriate to respond and explain my point of view," he says. "The public generally is not well informed about what actually goes on in a criminal trial. A lack of familiarity breeds suspicion." In speaking to both local "beat" reporters and national media, he says only on one occa- sion has he felt that his comments were misrepresented. If there is an area where the courts and especially the Supreme Court have been more expansive in applying the Charter, it is in cases involving equality rights of disadvantaged or minority groups. Here, there has also been criticism, often by socially conservative organizations or politicians. "I don't think anyone can pretend these are not values cases. But judges are doing what they are required to do under our democratically enacted Charter," says Lokan. As well, on social issues where there may not be a consensus, he says these disputes often end up in the courts because Parliament or a provincial legislature has refused to exercise its powers. "Gov- ernments use the courts to hide behind." Paul Daly, a public law professor at the University of Cam- bridge, says the judiciary in Canada still approaches these cases carefully. "Courts tend not to deviate too much from the social consensus on values. This applies in high-profile constitutional cases but also in more low-key cases. Many important tort or contract issues, like whether people hosting a party at home owe a duty not to let a guest drink and drive, turn on value-laden questions about personal freedom," says Daly, who was previously a law professor and associate dean at the University of Montreal. "THE PUBLIC GENERALLY IS NOT WELL INFORMED ABOUT WHAT ACTUALLY GOES ON IN A CRIMINAL TRIAL. A LACK OF FAMILIARITY BREEDS SUSPICION." The number of provinces opposing the federal government at the Supreme Court of Canada in the 1981 patriation reference case (only Ontario and New Brunswick joined with the federal government). The number of Supreme Court judges who concluded that, as a matter of law, the federal government could not amend the Constitution when it impacts provincial rights without the provinces' consent (justices Roland Ritchie and Ronald Martland). The number of provincial Courts of Appeal — the Newfoundland Court of Appeal — that ruled the federal government could not amend the Constitution unilaterally. Both the Manitoba and Quebec appeal courts also heard reference cases on this issue and ruled the federal government did have this power. The number of Supreme Court decisions where there has been a reference to the Charter since it was enacted in 1982 (the first Charter case to get to the Supreme Court was argued in February 1984). The number of Supreme Court rulings where Re B.C. Motor Vehicle Act has been cited, since it was released in 1985. The number of other judgments in which Hunter v. Southam has been cited by the Supreme Court since it was issued in 1984. The number of times R. v. Heywood has been referenced by the Supreme Court since it was released in 1994. For the first time, the majority in that case found that "overbreadth" in legislation was a ground for concluding it violated the principles of fundamental justice. The number of Supreme Court judgments where equality rights have been an issue to consider in its ultimate ruling. The number of Supreme Court decisions where "unreasonable search or seizure" has been an issue in a case before the court. 8 2 1 184 178 33 193 95 Source: Supreme Court of Canada judgment database CHARTER OF RIGHTS BY THE NUMBERS 1115

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