Meera Nair

Posts Tagged ‘Charter of Rights and Freedoms’

remembering Brian Dickson (1916-1998)

In Posts on May 19, 2016 at 6:04 am

Brian Dickson, more precisely The Right Honourable Robert George Brian Dickson, was born on 25 May 1916. Appointed to the Supreme Court of Canada in 1973, he became Canada’s 15th Chief Justice in 1984. The centenary of his birth is a fitting time to remember his contribution to what many of us take for granted: the capacity of our legal system to adapt to the changing mores of Canadian society. Dickson also brought the subject of law closer to all Canadians, he championed clear, effective writing that was comprehensible on a wider scale. “We are not writing simply for legal academics or other judges. The cases we deal with … affect every man, woman, and child in the country.”

Robert J. Sharpe has written extensively about Brian Dickson in journal articles, and together with Kent Roach, authored a book (A Judge’s Journey, 2003). From the personal and professional details published, it is apparent that Dickson’s perspective on law was shaped by many chapters of his own life. As a child, he was confronted with the spectacle of ill-fated Prairie farmers who laboured for a lifetime, only to lose everything in the Depression. Following his studies in law, Dickson served in WWII; there, a severe injury resulted in an amputated leg and constant residual pain. Post WWII, he coupled a successful career as a corporate lawyer with constant public service. At the height of his corporate career, he chose to forsake it and immerse himself entirely in public service by accepting an appointment as a trial judge in Manitoba. A later appointment to the appellate court of Manitoba eventually led to his Supreme Court tenure.

Dickson’s life experiences abetted and honed his concern for maintaining harmony between the dignity of the individual and the well-being of the community. That dual priority, coupled with a brilliant mind, enriched Canadian public life for generations to come. As Chief Justice, Dickson set the tone during the early years of constitutional interpretation following the adoption of the Charter of Rights and Freedoms in 1982.

The Charter marked a prominent moment in the journey towards Canadian sovereignty. It defined our rights and freedoms, and placed ownership of those qualities firmly in Canadian hands. The Charter protected citizens against legislation enacted by governments that, despite perhaps best intentions, compromise the larger purpose of having a constitution. In the days following his appointment as Chief Justice, Dickson was keenly aware of the role of the Supreme Court as guardian of Canadians’ constitutional rights:

When there is breach of the fundamental rights and freedoms under the Charter of rights, we have been given the right, the duty and the responsibility to deal with it and it is our duty to strike [the violation] down.
–  quoted by John Hey, “The New Face of the Law,” Macleans, Vol 97, Issue 18, 1984

More than thirty years have passed since the Charter was unveiled; many Canadians are likely unaware of how contentious that desire for a Made-In-Canada constitution had been, and with what mistrust the Charter had been eyed when it did arrive. Some Canadians resisted decoupling the nation from the British yoke of sovereignty over Canadian affairs. Others worried that the courts would become too powerful, disrupting the role of Parliament. Another anxiety was that Canada was merely aping the mantra of rights emanating from our southern neighbors. But in a speech in 2013, Chief Justice Beverley McLachlin (who has described her own early perspective of the Charter as “disinterested curiosity”) gave the definitive outcome: the Charter has stood the test of time and has helped forge a uniquely Canadian society.

[The Charter] reflected the kind of society Canadians wished to build for themselves and for generations to come. While patriation symbolized the raw fact of self-determination, the Charter made a statement about the ideals to which Canada should dedicate itself. Every nation needs a basic statement of what it stands for. For Canada, the Charter was that statement. …

[T]hirty years on, I think most would say that the patriation of the constitution was vital and that the Charter has stood the test of time. Canadians, polls consistently tell us, take pride in their Charter of Rights and Freedoms. It has, quite simply, become part of the Canadian identity. And it does not hurt that in the years since its adoption the principles enunciated in the Charter have been emulated abroad and the decisions of the Supreme Court interpreting them studied by courts and scholars throughout the world.

The distinctiveness of our Charter, and its capacity to foster balance among rights for all, may very well lie in its preamble. Our cherished constitution begins with a disclaimer:

S.1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Our guaranteed rights are limited. That statement is not as paradoxical as it sounds; in terms of individual interaction, it is not difficult to foresee that an unbridled enjoyment by individuals of their rights could lead to the violation of others’ rights.

But those justifiable limits must be carefully handled. Early on, Dickson set the standard for application of the limiting clause. In R. v. Big M. Drug Mart Ltd. (1985) he wrote:

At the outset, it should be noted that not every government interest or policy objective is entitled to s. 1 consideration. Principles will have to be developed for recognizing which government objectives are of sufficient importance to warrant overriding a constitutionally protected right or freedom. Once a sufficiently significant government interest is recognized then it must be decided if the means chosen to achieve this interest are reasonable‑‑a form of proportionality test. The court may wish to ask whether the means adopted to achieve the end sought do so by impairing as little as possible the right or freedom in question.

Shortly thereafter, Dickson went further in defining the role of courts when consideration of the Charter itself is required. In R. v. Oakes (1986) he wrote:

The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

Even before the Charter, Dickson had championed broader consideration of the social context of disputes, decisions and penalties. Sharpe describes a particularly poignant element of Dickson’s approach to law; in his early days as a trial judge, “… before passing sentence, he spent a day at Stoney Mountain Penitentiary and then proceeded to visit the Selkirk Mental Hospital (p.15).”

Along with situating the law within Canadian life, Dickson also ensured that decisions were accessible to all Canadians. Accessibility in this sense meant comprehensible. Dickson eschewed the formalistic, jargon ridden prose of the courts of the day; he championed clear prose, within reach of those outside of the legal sphere.

For Dickson, it was no longer sufficient for courts to rely solely on a mechanical recitation of precedent; a good judgment began from principle and was substantiated by reason. Dickson led by example and set a new standard for the Canadian judiciary. Even his criticism of the poor quality of existing judgments is precise, evocative, and leaves a reader wanting more: “Thoughts straggle across the printed page like a gaggle of geese, without form, without beginning or end, lacking in coherence, convincingness, conciseness (quoted in Sharpe and Roach, p.204).”

It may be overstating it, to say that but for Dickson most Canadians outside the purview of Law would have been unable to participate in matters of law. However, it is more than reasonable to claim that Brian Dickson’s stance hastened our opportunity.

Imbalance in Voice

In Uncategorized on August 28, 2009 at 8:32 am

Michael Geist has posted a synopsis of last night’s “townhall” meeting in Toronto, concerning the copyright consultations. It is disappointing to hear that the event was geared towards the interests of the entertainment industry; this diminishes my appreciation for the consultation process itself. Until now, I had some hope that the Ministers of Industry and Heritage were genuine in their effort to hear from all Canadians.

Reviewing the comments posted to Prof. Geist’s blog, Ben Lewis’s remarks raise a very disturbing point:

Myself and a few other representatives of the Canadian Federation of Students attended the town hall, although we did not “win” the right to speak.

Knowing that this might be the case, we brought some flyers to distribute beforehand detailing our position on expanded fair dealing, regulation of TPMs, “notice and notice”, and the elimination of crown copyright.

Unfortunately, event organisers immediately sent hotel security guards after us who stated that we either needed to put the flyers away or we would be removed from the premises. Alarming and frustrating to say the least. So much for the idea of it being a “public town hall”

This sounds suspiciously like a violation of the Canadian Charter of Rights and Freedoms. Section Two states.

Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

If the meeting yesterday had been purely a private affair, I would not be so concerned. But this was ostensibly a public gathering. And yet, a determined effort was made to silence dissenting opinion…

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