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The Charter of Rights and Freedoms turns 40: 10 important cases


Many Canadians are familiar with R. v. Morgentaler, which legalized abortion. But what about R. v. Oakes — the most cited case in charter history?

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The Charter of Rights and Freedoms came into effect on April 17, 1982. Since then, thousands of court cases have been launched, and decided, on the basis of the principles contained within that document.

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Many — most, perhaps — have had little effect beyond the immediate parties involved. But others have completely upended the way governments and Canadians think about a particular area of law.

Some of the most important charter cases don’t linger all that powerfully in public memory. R. v. Morgentaler, which legalized abortion, certainly does. But what about R. v. Stinchcombe? Or R. v. Oakes — the most cited case in charter history?

To mark the 40th anniversary of the Charter, here are 10 of the most important — and some of the most famous — court cases from the Charter era. The majority of them are from the first decade of the Charter’s existence, which reflects their foundational nature: An early case on free expression, for example, still matters today.

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“These older cases are still relevant because they initiated what the Supreme Court of Canada is struggling with today,” said Lisa Silver, a law professor at the University of Calgary. “If you look at the older cases that initiated the discussion of these charter rights you get a much richer, robust understanding of what these issues are that we’re facing now.”

Andrews v. Law Society of British Columbia, 1989

This case, the very first to be decided under the aegis of Section 15 (equality rights) dealt with the same issue as the the very first case the Supreme Court heard in the charter era. Sec. 15 didn’t come into effect in 1982 — it took three more years, a delay meant to give legislatures and Parliament time to make legislation charter compliant.

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The issue in Andrews, as in Skapinker, the first case, was whether lawyers had to be Canadian citizens. Mark Andrews, a British lawyer and permanent resident, wanted to join the law society but was barred because of his citizenship. Sec. 15 prevents discrimination based upon “race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

The Supreme Court found that section of the charter was not limited specifically to those nine factors, but rather, there were analogous grounds to be protected — citizenship was one of them.

Importantly, it also set up the framework the court would use to approach equality cases.

Simply put, the court opted for substantive equality versus formal equality, recognizing that even if everyone is treated the exact same, some will still be disadvantaged.

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“What Andrews kind of stood for was a substantive conception of equality, that the effects of laws — not just the intent of laws — would matter as part of the analysis,” said Emmett Macfarlane, a political scientist and constitutional law expert at the University of Waterloo.

Vriend v. Alberta, 1998

This was a landmark case for gay rights in Canada. Delwin Vriend was fired, in January 1991, from his job at a private Christian college in Edmonton after they found out he was a gay man.

Vriend attempted to lodge a human rights complaint, but sexual orientation wasn’t protected under the Alberta Individual Rights Protection Act. In response, Vriend went to court, arguing the act violated his equality rights under Sec. 15 of the charter by not protecting him from discrimination on the basis of sexual orientation. The Supreme Court agreed that the law unequally protected Vriend from discrimination because it didn’t include sexual orientation, and said such protections must be “read in” to the provincial law.

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The case, said Eric Adams, a constitutional law professor at the University of Alberta, saw the court recognize the reality that gays and lesbians faced discrimination and, even though sexual orientation wasn’t specifically spelled out in Sec. 15, it became a ground of discrimination that should be protected against. (It also, on the legal side of things, said courts could take a government to task not just for actions it had taken, but also for things it had not done.)

R. v. Morgentaler, 1988

Perhaps the most famous Supreme Court case, R. v. Morgentaler struck down laws that criminalized abortion in Canada. Henry Morgentaler opened a clinic in Toronto that provided abortions in violation of the law, which held they could be done only with approval of a special committee, in hospital.

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He was arrested and charged in 1983, and the case worked its way up through the courts until, in 1988, the Supreme Court of Canada struck down the Criminal Code provision that made providing abortions illegal, with the majority finding that the abortion ban violated a woman’s Sec. 7 rights to “life, liberty and security of the person.” The decision was not unanimous — it was a five-two decision. “It had a dramatic and immediate impact on the lives of women in particular,” said Adams.

Notably, Morgentaler was largely decided on procedural grounds — ie., the procedure surrounding abortion access violated Sec. 7 rights. It did not go so far as to create a right to abortion, and justices largely — though not entirely — avoided the question of whether women had the right to control their own bodies or make personal decisions about abortion. To this day, there remains no criminal law in Canada regarding abortion, although provincial rules do have an impact on access. One year later, in 1989, the court decided unanimously in Tremblay v. Daigle that a fetus has no legal status in Canada.

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Canada v. PHS Community Services Society, 2011

This was the case that involved Insite, the supervised injection site for drug users in Vancouver’s Downtown Eastside. It had operated since 2003 with an exemption under the Controlled Drugs and Substances Act.

In 2008, Tony Clement, then the federal health minister, did not extend the exemption — Insite sued, and won, with the court finding the Conservative government’s failure to provide an exemption violated the Sec. 7 rights to life, liberty and security of the person of injection drug users and caused obvious harm. It took a broad-based look at the social harms of services provided by Insite not being available — a much broader interpretation of Sec. 7 than was seen two decades earlier with the Morgentaler decision.

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In other words, the Insite case helped show that Sec. 7 rights are not the same as other legal rights, meant only to deal with, say, issues like the death penalty or how the justice system could treat a person. “This harm-based approach to this social policy issue is exactly what the court adopted in Bedford and then in Carter,” said Macfarlane.

By the time the court legalized medical assistance in dying in 2015, and struck down some prostitution laws in Bedford in 2013, Macfarlane noted, constitutional experts basically knew what was going to happen, and this is largely because of the way PHS explained Sec. 7 jurisprudence. “When PHS was decided, it came as a surprise,” he said.

Carter v. Canada, 2015

This case legalized medical assistance in dying in Canada, an issue that remains of keen interest to legislatures, as courts continue grappling with the laws around it and legislators respond. It found that Criminal Code provisions prohibiting assistance in dying infringed Sec. 7 rights to “life, liberty and security of the person,” and that this could not be justified. “Carter, like Morgentaler, reaches into an area of medical ethics and politics that, if it’s a legal question, it’s certainly one suffused with all kinds of political, ethical and religious undertones, overtones, crosscurrents,” said Adams.

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The case was brought forward by a number of people, including the family of Kay Carter and Gloria Taylor. It overturned an earlier ruling, the 1993 case Rodriguez v. British Columbia, which said there was no right to assisted suicide.

The Carter decision follows on the heels of the PHS Community Services Society jurisprudence, and finds, basically, that governments need to be careful they’re not violating the rights of people it shouldn’t, with a particular law. To use a legal term, the law cannot be overbroad.

In other words, there may be good reasons to prohibit medically assisted dying to protect certain vulnerable people, but this cannot prohibit those who are otherwise capable of making that choice.

“All of the stuff on medical aid and dying remains hugely important because the live issues there on access for mature minors, access for people whose sole condition is mental health issues, these are all outstanding questions,” said Macfarlane.

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R. v. Keegstra, 1990

James Keegstra was an Alberta schoolteacher who had been teaching students the Holocaust was a fraud and promoting anti-Semitism to his students. He was charged in 1984 with promoting hatred, a Criminal Code offence.

Keegstra argued his rights to free expression, protected by Sec. 2 of the charter, were being limited by the Criminal Code. In a split decision, the top court sided against Keegstra. While they found that Keegstra’s rights to free expression had been violated, “Parliament’s objective of preventing the harm caused by hate propaganda is of sufficient importance to warrant overriding a constitutional freedom,” the court said.

It was a very early decision in Canadian free expression jurisprudence. “The majority upheld the prohibition as being a proportionate and rational way of addressing a real societal harm,” said Adams.

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Notably, he said, Beverly McLachlin, who would later become the chief justice, dissented strongly in that case, and this may have been when she began to be noticed as a possible future chief justice. However, Macfarlane pointed out that she seemed to change her position, in the 2013 Whatcott case.

“Thirteen years after the Keegstra decision, McLachlin is suddenly part of the unanimous court upholding the provincial hate speech law in Saskatchewan and she doesn’t really address what she said in her Keegstra dissent, which was really interesting,” Macfarlane said.

R. v. Stinchcombe, 1991

There are a number of crucially important charter cases that involve fundamental rights but aren’t necessarily major headline issues, like abortion or prostitution or hate speech. Stinchcombe is one such case, which affects the way criminal trials happen, in particular, by saying the Crown must disclose its information to the defence, instead of springing it upon them at trial or withholding evidence from the defence that could hurt the Crown’s case.

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In this case, William Stinchcombe, a lawyer, was charged with theft and fraud. A secretary of his gave evidence that supported the defence at a preliminary inquiry, and also gave the RCMP a statement. The Crown opted not to use that statement, and when the defence asked for it, the judge refused to provide it, and Stinchcombe was convicted. The Supreme Court ruled that the defence deserved access to all this information.

There are a number of reasons why Stinchcombe is important, but perhaps chief among them is that the court said trials are about justice, not winning. “Stinchcombe made it very clear … Crown prosecutors have a role that’s very different from the defence counsel, and their role is they must be sure that that justice is done,” said Silver. “Because they are ministers of justice, that it shouldn’t be about winning or losing. It’s about justice.”

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R. v. Oakes, 1986

This one’s about drugs. It’s among the most important cases, and almost certainly the most-cited Supreme Court decision. In 1981, David Oakes was arrested with hashish oil. At the time, Canada’s Narcotic Control Act held that if a person had a certain quantity of a drug, he would be convicted of trafficking — unless the accused could prove it was not for trafficking, but for personal use, which Oakes maintained it was.

The argument was that this violated the presumption of innocence (contained in Sec. 11(d) of the charter) and the court needed to weigh whether this could be justified under Sec. 1, which allows charter rights to be limited, with sufficient reason.

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Oakes won — but what’s important here is that the case created what’s called the Oakes Test, a three-part test used to gauge whether the government can justifiably and constitutionally violate someone’s rights.

“The court has over time very much oscillated on how stringently it applies the test … so it hasn’t always been consistent about the Oakes test, but the Oakes test has remained consistent,” said Macfarlane. “They’ve never altered the core structure of the test. And in fact, it is so influential, it’s been influential outside of Canada, like other countries’ top courts have looked to it.”

Multani v. Commission scolaire Marguerite Bourgeoys, 2006

The Supreme Court has tackled a number of tricky religious freedom cases. Perhaps the most significant is the Alberta v. Hutterian Brethren of Wilson Colony case in 2009, where the Alberta government was changing the rules to require photographs on driver’s licences.

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The Hutterites sued, and lost, with the Supreme Court finding the government’s desire to prevent fraud was critical. In terms of the way the courts approach religious freedom issues, this was important, Macfarlane said, because it decided that the court wouldn’t adjudicate the truth of religious questions in court.

The Multani case, which came three years earlier, is notable because it grapples with the question of reasonable accommodation, said Macfarlane, which remains a live issue, especially regarding Bill 21 in Quebec. “Multani is one of those cases that make it clear why Bill 21 is such an affront to the charter, why it could only be in place because of the notwithstanding clause,” said Macfarlane.

In short, Gurbaj Singh, a Sikh youth, wanted to wear a kirpan — a ceremonial dagger — to school. The school said he could wear it, so long as it was inside his clothing, and the boy and his parents agreed. The governing board of the school refused, though, saying it violated a prohibition on carrying weapons, and the issue landed in court.

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What the court found, basically, was that the ban on the kirpan prevented Gurbaj from going to school, since he could not do so without violating religious beliefs. “The court captures some of the … need to recognize that diversity was going to be part of Canada’s constitutional future, that the Constitution had to recognize that fundamental reality,” said Adams.

R. v. Big M Drug Mart Ltd., 1985

Can you remember a time when a person couldn’t go shopping on a Sunday? Well, that was once the rule. In 1982, Big M Drug Mart in Calgary was charged under the Lord’s Day Act for selling goods on a Sunday, specifically, groceries, plastic cups and a bike lock.

This went before the court with the question: Does this violate Sec. 2 (freedom of conscience and religion) and if so, is it justifiable to do so under Sec. 1? “To the extent that it binds all to a sectarian Christian ideal, the Lord’s Day Act works a form of coercion inimical to the spirit of the Charter and the dignity of all non Christians,” the court said.

Adams said the decision “transformed the practice of Canadian economic life,” by allowing Sunday shopping. The act, he said, had actually been challenged under the Canadian Bill of Rights back in the 1960s, and the court decided it was quite alright. “The striking down of that provision revealed that this was a court that was going to be prepared to do things that previous iterations of the Supreme Court were not,” Adams said.

• Email: tdawson@postmedia.com | Twitter:

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