Since 1982, most criticism of Charter has come from academics, not politicians, media, lawyers, leaders of interest groups, ordinary Canadians. A few exceptions:
Alan Blakeney, former NDP premier of Sask. Has Ch blocked progressive social leg? (election financing, rape shield, tob ad)
Sterling Lyon, former PC premier of Man. Has Ch blocked cons initiatives? (Vriend, MvH, Winn Ch & Fam Ser, Aundel, Singh)
Mulroney: crit only of S. 33.
Sigurdson: Claims of academics on both left and right highly exaggerated. Analysis is made to fit ideological perspectives. “Charterphobes.”
Charter Critics revisited (2)
What cases have advanced interests of powerful, and hurt the underprivileged?
Possibilities: Big M, McKinney, RJR MacDonald, Dolphin Delivery, AB Lab Ref., Rodriguez, Symes, Thibaudeau, Egan (Counter: Andrews, Lavigne, Delgamuukw, Marshall, Vriend, M. v. H., Eldridge)
Expense of litigation
What cases have advanced the cause of the left-wing “court party” and/or unduly interfered with legislative supremacy?
Possibilities: Operation Dismantle, Mills, Andrews, Morgentaler, Daigle, Borowski, Vriend, M. v H., Oakes, Therens, Sharpe, Zundel, Butler, Singh, Askov, Schachter, Eldridge
What is your assessment?
Hogg & Bushell on “Charter Dialogue”
Argument: in most cases where the courts have struck down legislation under the Charter, the appropriate legislature has re-enacted the legislation while accommodating human rights. They refer to this as a “dialogue.”
Four processes of “dialogue”
Section 33: Ford case and aftermath
Section 1: eg. RJR Macdonald case. Parliament re-enacted the legislation prohibiting “lifestyle” advertising and adv. directed towards children, and restricting advertising to informational and differentiating brand preferences.
Issues dealing with Charter sections with qualifications (ss. 7, 8, 9 & 12):
7: “fundamental justice”
8: “unreasonable” seach & s.
9: “arbitrary” detention
12: “cruel and unusual” punishment
Eg. Hunter v. Southam case of 1984: Comb. Inv. Act immediately amended to comply with court’s ruling on qualification.
S. 15: broad wording can allow governments to achieve objectives while respecting court’s interpretation of equality. Eg. reaction to Thibaudeau or Schachter.
Charter dialogue, cont’d
Some situations where dialogue can’t occur:
1. Objective of legislation is unconstitutional – eg. Quebec Protestant School Boards case, or religious objective of Lord’s Day Act.
2. A stalemate in Parliament or a legislature, such as after Morgentaler.
65 federal laws had been struck down partly or entirely prior to the study (late 1990s). 80% had been revised and re-enacted. In 75% of these cases, the action came within two years.
Conclusion: the Charter hasn’t really hampered legislative policy-making very much.
F.L. Morton: the process is more of a monologue than a dialogue. The “oracular” nature of courts does not facilitate “dialogue.”
Janet Hiebert: Dialogue can occur, as in the rape shield cases, where Parliament or a legislature has the will to act.
Gregory Hein: Charter promotes “dialogue” between courts and disadvantaged groups. Between 1988 and 1998, 819 interest groups were parties to Charter cases, or intervened in SCC. 468 corporate, 77 aboriginal, 80 “charter Canadians.” Ian Brodie disagrees.