Canadian Lawyer

46 S e p t e m b e r 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m by jiM MiDDleMiSS BaCk pagE O P I N I O N Clash of the clauses i 'm no constitutional expert, but if you ask me, Charter litigation in Canada is about to get a whole lot nastier. I believe we are entering an interesting phase where the low- hanging Charter fruit has been plucked. We are now going to see an all-out war pitting Charter right against Charter right. If it were a screenplay, we could call it the "Clash of Clauses." So what do I mean? The Cana- dian Charter of Rights and Free- doms has had a substantial impact on policy in Canada since it was adopted more than 30 years ago. For the first decade, much of the Charter litigation wending its way through the courts was focused on fleshing out what the criminal legal right sections meant. So in addition to the historic 1986 ruling in R. v. Oakes, which set out the test for determining the limits of Charter rights, Canadian courts spent much of their time sussing out issues such as the right to counsel, arbitrary search and seizure, and the right to be tried within a reasonable time, among others. That led to the Supreme Court creating a solid foundation of rights that protect Canadi- ans from overzealous cops. That's not to say the court ignored other rights during the Charter's early life. It also made many rulings pertain- ing to the equality rights laid out in s. 15. Since 1982, the Charter has been used on many policy fronts, from eradicating mandatory retirement to dealing with inequality in pension and marriage leg- islation — though academics point out the Supreme Court struggles to find the appropriate test to apply to s. 15. However, much of that litigation often involved looking at rights in isola- tion. It was about testing the parameters of isolated sections of the Charter. Now the fun begins, stacking up Charter sections against each other to test the limits of government policy. Does freedom of religion — for exam- ple, polygamous marriages permitted in some cultures — trump equality rights? Which ranks higher? Freedom of speech when it involves hateful comments about race or sex or a person's right to be treated equally? What's a more important funda- mental right, freedom of conscience and religion or freedom of association? It's not just competing rights that will turn up the heat in Charter litigation. Policy questions in general are poised to be more fractious. Look at the recent prostitution case, which involved freedom of speech and s. 7 of the Charter, which deals with the right to life, liberty, and security of the person. It is testing Canadians' resolve for a legal red-light district. A recent Federal Court ruling that held denying refugee claimants access to free health care, which was cruel and unusual treatment under Charter s. 12, will cost Canadian taxpayers hundreds of millions of dollars if it stands. Does that mean services for those with citizen- ship will be curtailed to accommodate health care for non-citizens? How is that fair to Canadian parents whose sons or daughters need special drugs or surgery to enhance their quality of life and what about their Charter rights? The most interesting Charter arguments to come will undoubted- ly involve s. 7, which is still evolving. Does s. 7 entail a right to breathe clean air or live in a pollution-free environment? If so, what impact will that have on resource develop- ment? By the same token, how far does s. 7 go in securing a right to earn a living? What happens when job rights and environmental rights clash? What about mobility rights under s. 6 and the right to pursue the gaining of a livelihood in a province if that livelihood involves resource extraction or producing machines that increase pollution? Where will the lines be drawn? These issues are more challenging and fractious than deciding if someone should have the right to speak to a law- yer if detained. A case being brought in the Ontario courts by Ecojustice seeks to test the environmental question involving a Sun- cor plant in Sarnia and a region dubbed "Chemical Valley," described as one of Canada's most polluted areas. Two mem- bers of the Aamjiwnaang First Nation say a government decision allowing Sun- cor to increase refinery operations by 25 per cent to process more crude from Alberta's oil sands violates their s. 7 rights. The case is expected to be heard in 2014. When it became law, the Charter was hailed as a document that pulled the country together. Today it is pitting its citizens against each other. It makes me wonder, how long before federal or provincial governments start exercising their rights under s. 33 to opt out and evade divisive Charter rulings? No one said making Charter law would be easy, but the real challenges are just beginning. Jim Middlemiss is a principal at Web- NewsManagement.com. You can follow him on Twitter @JimMiddlemiss. sara tyson

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