DRAMATIC DECLINE IN SUCCESSFUL COURT CHALLENGES AS CHARTER OF RIGHTS AND FREEDOMS TURNS 15 -- REVEALED IN NEW REPORT BY <i>CANADA WATCH</i><p>

DRAMATIC DECLINE IN SUCCESSFUL COURT CHALLENGES AS CHARTER OF RIGHTS AND FREEDOMS TURNS 15 -- REVEALED IN NEW REPORT BY CANADA WATCH

TORONTO, April 17, 1997 -- As the Charter of Rights and Freedoms turns 15 today, an analysis of its constitutional challenges shows that its success rate has fallen from almost 45 per cent to 11 per cent over three years.

That is just one of the findings highlighted in a special issue of Canada Watch, a journal of analysis on key national issues published by the Centre for Public Law and Public Policy and the Robarts Centre for Canadian Studies, both at York University. The lead article, "The Supreme Court of Canada's 1996 Constitutional Cases: The End of Charter Activism?", is written by Canada Watch co-editor Patrick Monahan, a law professor at Osgoode Hall Law School of York University and director of the Centre for Public Law and Public Policy, and by Michael J. Bryant, an associate with McCarthy Tetrault in Toronto and a law lecturer at Kings College, University of London, U.K.

The authors examined Supreme Court cases involving constitutional challenges under the Charter during the periods 1987-1991 and 1994-1996. After conducting a statistical analysis of the cases, Monahan and Bryant note that the "success rate" -- the rate of constitutional challenges successfully argued in the Supreme Court using the Charter -- dropped radically to 11 per cent in 1996 from 24.1 per cent in 1995, and from 43.8 per cent in 1994. The average success rate over the eight years that were studied is 27.5 per cent.

"These numbers seem to confirm the analysis offered by many of the contributors in this issue to the effect that the Court is now in full retreat from the much-vaunted activism of its first years under the Charter," write Monahan and Bryant.

"Charter claims succeeded in only 3 of 27 Charter cases decided during the 1996 term," they write. "This 1996 `success rate' of 11 per cent is less than one-half of the comparable success rate for Charter claims in 1995, and only one-quarter of the 1994 success rate. It is also significantly lower than the comparable figures for the 1987 to 1991 period, when Charter claims succeeded on average in approximately one of four cases decided by the Court."

Other key observations in the report include:

The difference between the number of federal vs. provincial laws struck down using Charter claims was statistically insignificant -- a finding contrary to findings in a previous study of the Charter's first 100 cases. That study found the Charter was much more successful in striking down provincial laws than federal laws. The Canada Watch study shows that during the past three years, 23 provincial statutory provisions and 18 federal statutory provisions were challenged on the basis of the constitution with the challenges succeeding in eight of the 23 provincial cases and five of the 18 federal cases. The small difference in the relative success rate in these two groups of cases (34.5 per cent success rate in challenges to provincial laws, versus 28 per cent in challenges to federal laws) does not appear to be particularly significant, given the limited number of decisions in each category.

The authors suggest that Parliament and the legislatures may have become "more charter friendly (and perhaps Charter savvy", amending those statutes and practices in a manner that is more respectful of individual liberties and Aboriginal rights. Viewed in this way, the 1996 statistics might suggest more a judicial period of stability than one of blind deference to public officials."

More aboriginal rights cases were decided in 1996 Charter than in any other of the eight years studied. Although the success rate for Aboriginal claims last year was close to 50 per cent, that figure may be misleading because the reasoning of the Court in those cases seemed to narrow the scope of aboriginal rights. The aboriginal claimants won in those cases, but the reasoning of the court means there may be fewer successful aboriginal rights claims in the future.

The Supreme Court appeared to be most sympathetic to Charter claims based on three areas of law: the right to a lawyer, the right to a fair trial, and search and seizure claims. The sections of the Charter with highest success rate for constitutional challenges at the Supreme Court over the past three years include: Section 10(b) "The Right to Counsel", with an 69 per cent success rate (9 out of 13 cases); Section 11(d) "Right to Independent and Impartial Tribunal" with a 41.7 per cent success rate (5 out of 12 cases); and Section 8 "Right to Be Secure Against Unreasonable Search and Seizure" with a 35 per cent success rate (7 out of 20 cases.)

For a copy of the special issue of Canada Watch, call Krystyna Tarkowski at (416) 736-2100 ext. 55499.

- 30 -

For more information, contact:

Patrick Monahan
Co-Editor, Canada Watch
Professor, Osgoode Hall Law School,
York University
(416) 736-5568

Mary Ann Horgan
Media Relations
York University
(416) 736-2100, ext. 22086

Sine MacKinnon
Sr. Advisor, Media Relations
York University
(416) 736-2100, ext. 22087
YU/038/97

| Welcome to York University | Latest Release | Release Archives |