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Someone Tell the Conservatives: Our Charter's Worth Celebrating

04/17/2013 08:27 EDT | Updated 06/17/2013 05:12 EDT
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On April 17, Canadians commemorate and celebrate the thirty-first anniversary of the Charter of Rights and Freedoms. This is an opportunity to reflect and act upon the importance of this revolutionary constitutional document, which has had a transformative impact not only on our laws but on our lives. Indeed, Canada's Charter has been extolled abroad and has served as a model for other countries in drafting their constitutions, including South Africa -- which will be celebrating its "Freedom Day" soon.

While the government's muted response for previous anniversaries -- particularly last year's milestone 30th anniversary -- has been disappointing, Canadians ought to be even more seriously concerned by the Conservatives' marginalization of the Constitution in general, and the constitutionally-suspect legislation the government introduces that infringes on the very rights and freedoms the Charter enshrines.

In a question of privilege raised in the House this past March, members of Parliament -- including myself -- expressed our concern that the government has failed to live up to its statutory obligation pursuant to section 4.1 of the Department of Justice Act, which requires that the Minister of Justice examine every government bill introduced in the House to ensure that it is consistent with the Charter -- the constitutional seal of approval. It further requires that the Minister report any such inconsistency to the House at the earliest opportunity.

Yet, despite this obligation -- and despite a series of court cases calling into question the constitutionality of government legislation -- no such report has ever been tabled by the Minister of Justice.

It should be appreciated that this is not some mere arcane procedural legal rule. Simply put, the adverse consequences of introducing suspect legislation cannot be understated. Judicial resources are strained by having to hear these cases; taxpayers bear the cost-burden of their lengthy and costly defence; Parliamentary oversight is diminished; public cynicism is enhanced, and rights may be violated -- potentially also giving rise to compensation claims. All this could, and should, be avoided with due respect for -- and adherence to -- the constitutionality of the legislation proposed.

A senior justice bureaucrat has taken the government to court over its approach to section 4.1, revealing that the policy applied considers bills consistent with the Charter if they have a mere five percent chance of being upheld by a court. While the government disputes this charge, it is clear there is a problem with the review standard being applied -- or the review process itself -- particularly as dramatized by the Government's criminal justice legislation.

In particular, courts in Ontario and British Columbia have on two occasions struck down mandatory minimum sentencing provisions as being in violation of the Charter's section 7 right to liberty and security of the person as well as the section 12 right to freedom from cruel and unusual punishment, while such legislation is also being challenged in Quebec. Nonetheless, the government continues to press this draconian approach to sentencing, which is objectionable from a policy perspective as well given that such sentences have not been shown to serve as an effective deterrent, have been demonstrated to increase crime - both in prison and outside of prison - and have a differential and discriminatory impact on vulnerable groups already suffering from poverty, deprivation and disadvantage, such as our aboriginal peoples.

Moreover, these recent court cases suggest that there are real constitutional questions raised by this approach to criminal justice policy. Indeed, a judge in an Ontario case went so far as to say that the imposition of a mandatory minimum in the case before her would be "fundamentally unfair, outrageous, abhorrent and intolerable." Again, the absence of any reports tabled in the House by the Minister raises important questions in this regard.

Constitutional challenges remain before the courts with regard to several other pieces of legislation -- particularly in the area of immigration. There is little doubt that more government legislation will be challenged -- if not struck down -- if the government continues its seeming reckless disregard for the Charter when legislating. Indeed, the Supreme Court announced just last week it would hear two appeals regarding parole and pre-trial detention credit changes made by the Conservatives as part of their "tough on crime" agenda and which have been challenged on Charter grounds.

As opposed to viewing the Charter as a hindrance to its legislative agenda, the government should embrace the Charter -- as have lawyers, judges, academics, and even the majority of Canadians according to public opinion polls. On this anniversary we should be promoting and protecting those values the document enshrines, both at home and abroad. Regrettably, the Government's cavalier attitude towards this bedrock of our constitution provides little comfort or cause for celebration. Certainly, Canadians and the Charter deserve better.


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