Transcript - Canadian Politics 101: The Charter of Rights and Freedoms

12 Feb, 2025

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Table of Contents

• Introduction
• The Charter’s Role in Canadian Democracy
• Who Wrote the Charter
• Pierre Trudeau’s Vision and Language Rights
• What's in the Charter? Key Sections
• Section One: Reasonable Limits on Rights
• The Notwithstanding Clause
• Reading Rights Into the Charter
• How Charter Cases Work
• Final Reflections on the Charter

Introduction

Ian Van Harten (00:02.158) All right, Dr. Bateman, back for another round. How are you doing?

Tom M.J. Bateman (00:07.765) Okay, thank you.

Ian Van Harten (00:09.56) Good. Yeah, so last time we finished up, you had sketched out how the Canadian Constitution began as an act of British Parliament in 1867. And then through a process called, Patiation, which I believe is not a real word, but anyway, through that process.

the Constitution was brought back into Canada so now that we have the tools to change it and control it and it's here with us. And that happened in 1982. And so through that process this thing called the Charter of Rights and Freedoms was added to the Constitution. And so that's what we're going to be spending this episode today talking about.

Now before we get into it, I'm wondering, because you've done some work studying the charter and working with it, I'm wondering if you can just talk a little bit about your background doing that before we get started.

Tom M.J. Bateman (01:20.263) Sure. I was an undergraduate student at the University of Calgary starting in 1980. And it turned out that this was right in the middle of a period of real constitutional turmoil in Canada for several different reasons. One of them is that the 1970s produced an energy crisis in many parts of the world.

the OPEC cartel came together to restrict the supply of oil onto world markets. That sent the price per barrel through the roof. It propelled many countries into recessions and inflationary spirals. And in Canada, it had a very mixed and turbulent kind of effect because in those provinces,

whose people consume energy, they felt great pressure to pay for much higher fuel costs and also all the other prices that went up.

due to increased energy costs. But in the oil producing provinces, this was a boon. It produced a revenue windfall. And I'm speaking particularly of Alberta, but to a lesser extent, Saskatchewan and British Columbia. And the federal government was interested in getting a piece of that economic pie. But there arose huge constitutional...

debates about whether the feds or the provinces had jurisdiction over the exploration, production, sale and taxation of natural resources sitting beneath the surface in the provinces. And the provinces said, well, it's all ours. And so just go away.

Tom M.J. Bateman (03:18.229) And the Fed said, well, actually, no, we think that it's in the national interest that the federal government assume responsibility for some of these resources and the revenues emanating from their sale. And so this produced a big fight between the Western provinces, especially Alberta and the federal government. And that lasted right through the 1970s and into the 1980s.

the Parti Québécois was elected to a majority government in Quebec in 1976. Rene Levesque promised that if he were a made premier of the province, then there would be a referendum on Quebec independence before his electoral term ended. And there was a referendum in May of 1980, which the separatists lost fairly convincingly.

But nonetheless, this really shook up Canadian politics for the latter half of the 1970s. And it created a lot of fear that Canada actually could break apart. On the part of the prime minister at the time, Pierre Trudeau, it convinced him that the provinces in this country were way too strong. They were balkanizing forces in Canadian politics and that more power for them

meant diminished prosperity and unity for the rest of the country, for the whole country. And so he had a desire to reassert the importance of the federal government in the lives of Canadians. And that meant a diminution of the significance of the provinces in the lives of Canadians. And

In addition, he was interested in reducing and even vanquishing Quebec nationalism. And he was interested in doing so by making all of Canada a home for French speakers. Like one of the aces in the hole for Quebec nationalists was that

Tom M.J. Bateman (05:39.433) Quebec is really the only jurisdiction in North America where francophones have a chance at surviving. And Trudeau wanted to present an alternative, which is that there are francophone communities in provinces outside of Quebec. Every bit is entitled to the security of their language and the progress of their language as those in Quebec are.

and that we need to strengthen the rights of these official language minorities outside of Quebec so that a francophone can see all of Canada as a safe place for the French language. And that meant the provinces outside of Quebec would have to do more

to safeguard their francophone communities. And it would mean also that the Quebec government would have to honor the rights of the English language minority inside of Quebec. So there's an awful lot going on at this time. And I started my undergraduate career in 1980 at the U of C.

And I knew nothing because I was just, actually I was 17 at the time when I started and all this turmoil and ferment was unfolding in the country. And like many, many others, like I had no idea what was going on but I found it really, really interesting. so maybe it was part of what was going on in the country but I also had some really good professors.

when I was in my first and second years. And it all led me to study political science. And when the charter was entrenched into the constitution in April of 1982, one of the political scientists in the department at the University of Calgary quickly procured a significant research grant to study the early...

Tom M.J. Bateman (08:04.765) judicial treatment of the charter as it was being litigated in the lower courts and then moving up through the appeal hierarchy. And he was interested in sort of cataloging what provisions litigants were using to challenge laws. Were they challenging laws or were they challenging administrative action? Were they challenging federal laws or provincial laws? What rates of success did charter claimants have?

in this early stage of post-charter Canada, so on and so forth. And so he needed some students to prepare the code books for tracking quantitatively the judicial record on charter litigation. And I was one of those who got a job really in the summer of 1982 to read charter cases so that I could develop a code book that other

students down the pike could use to to re-chart cases and then quickly fill in all the details and then that would be part of the big database and then someone would crunch the numbers then we would find out that you know 42.1 percent of charter challenges based on section seven succeeded in Alberta but only 28.3 percent did so in Manitoba let's say blah blah blah so I became interested in the charter kind of through that mechanism

and I wrote some papers as an undergraduate. And in fact, I wrote one paper as an undergraduate on some of the early decisions on section 32 of the charter, which is the charter application provision. It's very arcane, but most people have no idea what it is. And I revisited that paper when I did some coursework for my PhD and it...

it became so intriguing to me that I actually wrote my dissertation on Section 32 of the Charter. And that sort of, you know, was a means by which I just got completely immersed in Charter politics and the jurisprudential sort of journey of Charter provisions and the larger questions of the relationship between courts and legislatures and...

Tom M.J. Bateman (10:25.395) so on and so forth. And so I subsequently published more stuff on charter issues and it's been sort of with me ever since.

The Charter’s Role in Canadian Democracy

Ian Van Harten (10:36.238) So you're the right man to be talking to, I guess. So before we dive into some of the details about the Charter itself, I'm wondering if we can look at it from a high level and just ask what is the significance of the Charter for Canadian government and for the country?

Tom M.J. Bateman (11:04.147) Yeah. First big point is that the charter has always been sold as an important protection for democratic minorities. Canada is a democracy and accordingly there's a majoritarian logic to our political decision making. And

So whenever we debate a public policy issue, the arguments go back and forth and so on and so forth. We try to persuade one another, but at the end of the day, we're gonna have to sit down and we're gonna have to have a vote. And the winner of that vote will either have a plurality or a majority. And that's the majoritarian logic. It works in elections and constituencies. It works in the appointment of leaders

of parties in the House of Commons and the provincial legislatures and in most meetings of officials, that's how we make decisions. And of course, the problem is that when you have a majority in favor of something, you're necessarily creating a minority. And the concern is that particular minorities might be

permanently on the losing end of majoritarian decision making. so if a minority is characterized by a certain ethnic identification or racial identification or religious identity, the concern is that majoritarian decision making may be used to suppress the status or otherwise of a particular minority.

And so the argument has always been that a charter of rights can be an important mechanism for putting limits on the decision-making powers of majorities with respect to minorities. And in that way, the charter has helped to sort of recast Canadian politics in minoritarian

Tom M.J. Bateman (13:31.733) terms and that when certain people, groups of people, identifiable minority groups find that they are losing in the conventional political process, they might find themselves tempted to re-articulate their interest or their demand or their concern in terms of rights. And the charter now

is available to them as a pretty powerful instrument for asserting their interest in the language of rights and in the institutions of the courts if they find that the conventional electoral, political, parliamentary, majoritarian process doesn't do it for them. so I think that's been a significant

contribution that the Charter has made to Canadian politics, that it's sort of fostered kind of a more minoritarian kind of style of politics. Unquestionably, the Charter, since its entrenchment, has increased judicial power. And now we see that courts can review

legislation passed by parliament, they can strike it down, they can suggest or sometimes even dictate alternative public policy approaches that the government really needs to heed if it wants its new legislation to pass constitutional muster. And we'll probably end up talking about this a little bit more.

But the question is whether when courts decide charter questions, are they simply vindicating the rights of aggrieved litigants appearing before them, or are they engaging actually in a larger public policy making exercise that begins to mimic the legislative process itself?

Tom M.J. Bateman (15:57.645) And one quick way of putting the point is if the courts and ultimately the Supreme Court of Canada operates as a third legislative chamber, House of Commons, Senate, and now Supreme Court. The paradox in all of this, by the way, is that the Supreme Court has nine members and often the full...

bench of nine members will sit to hear an appeal. Often it's also seven. In rarer cases, it's five. But in any case, it's a group and it's almost always an odd number. And the decisions of the high court are ultimately made by majority vote. And so it's a kind of a funny sort of vindication of the democratic majoritarian principle operating

in an institution designed to repair the defects of democracy. So the increase in judicial power is important. And I would say that another significance of the charter has been how it may have affected the legislative process. Certainly the existence of the charter

has made legislators more aware of whether the legislation they pass may sooner or later end up in the courts. So they're trying to anticipate what the courts might say about legislation before it is passed. That actually becomes a difficult thing to do because the membership of the court changes. And so you get new people on the courts whose views may be...

different than those whom they replaced. But the other thing is that there are cases where the court has simply changed its mind on things and has abandoned its earlier precedence on a certain matter and has gone off in a new direction. so it's actually harder now for legislators to figure out

Tom M.J. Bateman (18:19.433) how the courts might pronounce on a public policy they're thinking of. But an additional influence of the charter on legislatures is that when a difficult policy problem comes before the legislatures, let's say it's like a question of abortion policy or assisted suicide policy, these are very difficult things.

for politicians to deal with because populations are often more or less evenly and hotly divided. They don't see like a really clear political benefit from choosing one position on the issue versus the other. It's very tempting for them simply to punt to that issue and allow the courts to decide. And it relieves them of the political difficulty of engaging

a difficult, sometimes moral question. And they themselves add to the power of courts by having the courts consider the matter as a matter of rights versus some other way of framing it for legislatures to deal with. So I think the charter has been quite significant.

in these respects, one final respect, I think, is that the Charter encourages Canadians to think of themselves as rights holders, as people with entitlements. think of that kind of language in contrast to the language of obligation, let's say, the obligation to vote.

the obligation to serve on a jury, the obligation to be well informed ahead of general elections. The language of obligation sits very awkwardly with the language of rights. And the Charter of Rights has really taken in English speaking Canada. And as a matter of fact, it's a very interesting thing. I'm not sure if it's cause or consequence, but if you go to the Government of Canada,

Tom M.J. Bateman (20:44.765) website and you look for on the Department of Justice homepage and you click on the box which refers to constitutional documents what you will see when that page of constitutional documents come up is the Charter of Rights right at the very top. It's not logically or historically prior to any other constitutional document.

but it's up there at the top. And like why? It's actually part of part one of the Constitution Act, 1982. The Constitution Act, 1982 comes after the Constitution Act, 1867. And the Constitution Act, 1982 has the charter as part one, but there are seven parts of the Constitution Act, 1982. And yet the charter is like lifted out of all that stuff and put at the very top for our attention.

speaks volumes about the importance of the Charter in the Canadian polity now.

Who Wrote the Charter

Ian Van Harten (21:45.454) Yeah, so there's definitely a lot of different impacts that it's had in lot of different areas. But it leads me to wonder who wrote the charter and how was it written? mean, you've kind of hinted at some of Pierre Elliott Trudeau's thinking and why he wanted to bring it in. But can you talk about that a bit more?

Tom M.J. Bateman (22:11.029) Yeah, this is not very well known, and even I don't have the full picture of whose hands were actually on the drafts of the Charter. But the Charter of Rights and Freedoms from 1982, I would say, begins with the Canadian Bill of Rights passed by the Dieffenbaker government in 1960. This was a

as it were a weaker document because it didn't clearly direct the courts to strike down laws that were found to be incompatible with the provision of the Bill of Rights. Nonetheless, Mr. Diefenbaker thought that a statement of fundamental rights would be important for Canada.

1960 was only 15 years out of the Second World War and its particular horrors and a lot of countries were jolted into a recognition that minority populations of all kinds need very serious, prodigious protection from wayward political elites.

And Canada was a part of that wave of thinking about the protection of racial and ethnic minorities after the Second World War. So anyway, the language of the Canadian Bill of Rights found its way in part into the Charter of Rights in 1982. When Pierre Trudeau became prime minister in 1968, he immediately began negotiations with the provinces on

a charter of rights and on the patrication of the constitution so that it would become ours and not a British document. And there was a draft of a charter in that document from 1971, the so-called Victoria Charter. The provincial agreement on that collapsed and so it didn't go anywhere. But Trudeau kept on pressing and a draft

Tom M.J. Bateman (24:35.445) of a new charter was prepared in October of 1980. at that time, Roger Tasse was the Deputy Minister of Justice. Barry Strayer was the Associate Deputy Minister of Justice. Jean Chrétien was the Minister of Justice. And they all...

were involved in supervising the drafting of a charter of rights. And this was given to a special joint committee of parliament, Senate and House of Commons on the Constitution of Canada for presentation to the country and for gathering kind of a reaction.

to this package of constitutional changes. So there was a proposed amending formula, there was a charter and a couple of other constitutional provisions that this special joint committee would consider before that package would be sent to the British to be passed by the British parliament and then

and then sort of relinquished to Canada. so this special joint committee, a lot of people thought, yeah, this is kind of un-Canadian. This is like way too open and transparent and democratic and so on and so forth. Too much consultation. Yeah, we're not used to that in the country. But it was a bit of a gamble. And in fact, it was Michael Kirby who was a special advisor to the prime minister who said, yeah, I think this is...

This is a gamble worth taking because the provinces are generally resistant to the entrenchment of a charter. But the Canadian people, when you ask them, would you like to have a bill of rights? They say, yeah, sure. Like who could be against rights? You're not gonna come across too many Canadians say, yeah, no, no, I don't want right to free speech. No, no, no, I don't want a right to be presumed innocent until proven guilty in the court of law.

Tom M.J. Bateman (26:57.269) Yeah, I don't want any of that stuff, nevermind. Now, of course the question is not really whether you want these rights, but the question is what is the mechanism, the institutional mechanism that is best for enforcing these things? But in any case, the Fed said, no, let's have the special joint committee and we're gonna advertise that there's a big charter of rights that are there for the Canadians for the taking.

And let's see how goes. Well, it worked actually fairly famously because the work of the special joint committee got a ton of public attention, lots of TV coverage, and most of the groups and individuals appearing before this committee were real charter cheerleaders. And so it meant that the federal government interested in charter now had a really big store of public opinion supporting it.

which could be deployed against those naysaying stupid idiot provinces that weren't really interested in a charter. So it became this big political but institutional and constitutional fight. bottom line is that now we have officials in the Department of Justice, we have some people in the Liberal Party and in the Liberal government, now we have parliamentarians on the Special Joint Committee.

They all have their fingerprints on little parts of the charter. A charter then was made a part of a large First Minister's Conference in November of 1981, and a really complicated, fascinating period in our Canadian constitutional politics. And there's a lot of horse trading on the elements of the charter there, which means that the premiers and

their intergovernmental affairs people, their attorneys general, their provincial legal staff all had input on the shape of the charter. And an agreement was reached in November of 1981 on the text of a charter. But that wasn't all of it because when that was released to the public,

Tom M.J. Bateman (29:18.087) a variety of groups, women's groups and Aboriginal groups in particular complained bitterly about some things that were left out or misstated or whatever it happened to be. And so some 11th hour changes were made to the draft agreed to by the first ministers. It was all cleared by them again. And then finally it went to Britain and the Canada Act was passed by the British parliament.

and the whole thing was proclaimed by the Queen in Canada on April 17 of 1982. So the drafting was a long process and a lot of different hands were involved in the wording of the provisions and we don't even know the names of all of them but a few people have tried subsequently to

to unearth some of the debate about the specific provisions and the drafts of the charter and so on and so forth. University of Ottawa law professor Adam Dodick has within the last couple or three years produced a pretty good volume.

containing sort of the edited transcripts of the proceedings of the special joint committee on the charter, like, and all the debates about the provisions of the charter, how they should be ordered, how this should be changed, so on and so forth. So there's more information now than there used to be, but it's hard to unearth.

Pierre Trudeau’s Vision and Language Rights

Ian Van Harten (30:50.734) And so it wasn't an expression of a particular philosophy about liberty and rights, for example. It was more gathering and consolidating these different interests and ideas from different areas of the country and different interest groups in the country. Is that right?

Tom M.J. Bateman (31:09.405) It was all of those things. Absolutely. I think, you know, I said earlier, the charter really helped us to think in minoritarian terms, but actually, minoritarian thinking helped to produce the charter itself. so, you know, a Canadian citizen can consider herself, well, first, I'm a woman. That's what I am first. And I'm sort of a Canadian next. And I want our institutions to recognize

the particular character, needs, and capacities of women. And if the charter doesn't have some kind of recognition of women's identity and status and needs and so on and so forth, it has to be in there. And so that way of looking at yourself in relation to the rest of the political community kind of influenced the drafting of the charter. So that's all true. Now, Pierre Trudeau,

was always a civil libertarian. he was like not a contemporary model of a civil progressive type, but like an older civil libertarian who really believed in freedom of speech and freedom of religion and so on and so forth, the classic civil liberties of the liberal tradition. But he had this other preoccupation, and that is with national unity.

and with vanquishing Quebec nationalism and with dialing down some of the overweening power of the provinces. And for him, the charter was extremely important in two ways. First of all, the charter would contain very solid protections for minority language groups across the country. so section 16 to 23,

of the charter for him is almost like the heart of it. This is like the sacred core because it contains language rights and minority language rights, official language minority rights. And so he constitutionalized a very particular vision of how language, the two language groups kind of operate in Canada. And the key thing is to move the protection of language away from

Tom M.J. Bateman (33:33.427) geographical provincial concentrations so that Quebec would find it more and more difficult plausibly to claim that it is the only secure homeland for the French language in Canada. That was his big objective. The charter was a way to actualize it. But more fundamentally, the idea for him was to get Canadians to think of themselves

not as much as residents of a province, but rather as possessors of rights. And the language of rights is non-territorial.

And because if I have rights, then it doesn't matter where I am. Like if I got rights in Alberta, I should have rights in Saskatchewan. And if I have rights in Saskatchewan, I should have them in New Brunswick. And Trudeau says exactly. This is the idea. If we can get Canadians to think of themselves as rights holders, they will think of themselves less as Albertans and as Quebecers and as Nova Scotians. And if that's true, then they're going to place less emphasis on the

the policy autonomy of the governments of the provinces where they live. so you got to hand it to Pierre Trudeau. A lot of people loathe him and so forth, and a lot of people just love him. But in any case, I think you've got to respect him for arriving at a fairly clear vision of the country and then having the

the skills to see it through, you know? And he didn't get all he wanted by any means, but the Charter was part of this large project to realize a certain Trudeauian vision of the country. And it's had some great influence. I suppose one could say that, well, he hasn't actually, the Charter hasn't vanquished Quebec nationalism. That is true.

Ian Van Harten (35:20.366) Mm-hmm.

Tom M.J. Bateman (35:45.363) That is true. And so there are some things that are really hard to dissolve. Quebec nationalism is one of them. And we're also at a time where the provinces are, yeah, they remain very, very powerful. So maybe it would have been a different story without the charter. Maybe Quebec would have been gone by now, who knows? But in English speaking Canada, for sure,

The charter has been a sea change.

Ian Van Harten (36:16.938) Although it's interesting, I hope this isn't too cynical, but there's this vision of the country that you're talking about that Trudeau had in mind. like you mentioned before, there's all this oil money going around in the provinces that he wanted a piece of too. guess that was part of the equation.

Tom M.J. Bateman (36:39.145) Yeah, and the jurisdictional fight with the provinces over oil revenues coincided with the plan to patriot the Constitution, entrench the Charter, have a new amending formula for the Constitution. it's amazing it all happened because there was so much distrust of the Prime Minister going into these meetings about constitutional renewal.

They almost foundered about three or four times. it was just an extraordinary thing that it actually came off. And I would say that in the absence of popular support for a charter, Trudeau's gambit may indeed have failed.

What's in the Charter? Key Sections

Ian Van Harten (37:30.99) Well, so let's look at more what's in the charter. You've hinted at some of the things that are in the charter, but can you go through a little bit of an overview of what's all in there and what does it say?

Tom M.J. Bateman (37:46.399) Yeah, Section 2 of the Charter contains the so-called fundamental freedoms, and these are classic civil liberties most people would recognize to be characteristic of any decent, open political community. Freedom of religion, freedom of speech, freedom of assembly, freedom of association.

So you have the capacity to think what you want, to express what you want, to believe in the God of your choice, or not to believe, and also the freedom to associate with others to advance the objectives of speech and thought and belief. And so that's important. Democratic rights are sections three to five, the right to vote, the right to run for parliament. If you are a citizen, by the way,

Many charter provisions are available to everyone, but there are a few that are available only to citizens. And so the right to vote is reserved for citizens, et cetera. section six, I guess I'll go through this kind of quickly and schematically, but section six is very interesting because it's called the mobility rights provision. Unusual.

in among other charters of rights in other countries around the world. A lot of other polities don't think this is necessary or whatever, but this is now another little piece of the Trudeau vision for the country. Mobility rights means that every citizen can move from one province to the other, can work in one province or another, and gain a livelihood anywhere.

and so on and so forth, which meant it was a way to prevent provinces from passing policies that would favour their own residents over residents outside of a particular province. And it would mean, you know, government preferences for hiring in-province workers to build a building versus out-of-province competitors for that same job. So Trudeau said,

Tom M.J. Bateman (40:11.027) Now what we want is to discourage the creation of provincial fiefdoms and lots of provincial preferential policies that favour their own residents and exclude other Canadians outside that province. So Section 6 will do that. There's a couple of qualifications and so forth, mainly put in there at the behest of the Newfoundland government, which did need to survive based on...

preferential hiring and procurement policies reserved for Newfoundlanders. So Trudeau said, yeah, okay, whatever. We'll stick in a couple of exceptions like that. this is the, you know, the mobility rights kind of really does inform the Trudeau's logic for, I think, the charter. Sections seven to 14 are also very classic.

civil liberties applying to persons who are engaged with the criminal law and the criminal administration of justice. And so the presumption of innocence, the right to trial within a reasonable time, the right not to be subject to unreasonable search and seizure, the right not to be subject to unusual, cruel and unusual treatment or punishment, and the rights you have upon arrest or detention, other rights that you have.

when you were charged with an offense. So those are classic limits on what the state can do to criminal accused. And ton of litigation over the history of the charter on these legal rights. Section 15 is the equality rights provision or the non-discrimination rights provision. Arguably one of the most complicated provisions in the charter.

a ton of litigation. The courts have tried different interpretive approaches, found them wanting, gone back to something else, tried something else. It's been a bit of a mess. But...

Tom M.J. Bateman (42:26.389) And it's one of the provisions that was most hotly debated actually in the drafting process. But that's equality or non-discrimination rights. And 16-23 refer to the official languages of Canada and a statement that French and English are the official languages of Canada. It restates provisions from elsewhere in the Constitution about the right to use French or English in Parliament of Canada and so on.

And but the official language minority rights section 23 are the guarantees that mother tongue francophone speakers in province outside Quebec have a right of access where numbers warrant to French language education and something reciprocal for English speakers living in the province of Quebec and

It's a complicated right. This is like an example of a positive right, which means that a charter claimant can use section 23 to get the courts to force provincial governments to provide education in the official language minority. The official, yeah, the minority official language rather. And this is unusual because most rights are about preventing government from doing things.

Section 23 is a rare example of a right which forces government to provide things, which means courts are telling a provincial government, you've got to spend money to vindicate this right under Section 23. That's significant because constitutional theory traditionally reserves the power of the purse to parliament.

the elected branch of government. The House of Commons is where money bills are introduced and debated and approved and they're approved in the Senate as well. If it's Ottawa, if it's a province, it's just the legislative assembly. And that's where the money gets decided, spending and raising. Courts don't do that. But with positive rights,

Tom M.J. Bateman (44:52.283) actually there is a bit of a tweaking of that separation of powers principle and now in limited ways a positive right would permit a court to order the spending of monies by the legislature to honor that right. So that's been significant. Section 24 is what's called an enforcement provision and it's like a grant of authority to courts to

Tom M.J. Bateman (45:24.684) issue whatever remedy is appropriate to honour a right. So there's an old saying, there is like no right without a remedy. There's no point simply saying someone has a right unless there's a chance at some remedy for a violation of that right. So section 24 gives courts a very broad authority to grant whatever remedy

is appropriate and just in the circumstances. And section 24-2 is what's called the exclusionary provision. And it means that in criminal cases, when evidence is gathered by police against an accused in a manner that violates the rights of the accused, that evidence shall be excluded from the trial.

kind of unless its admission would bring the administration of justice into disrepute. So it's sort of a partial exclusionary clause, meaning that the police may gather evidence, but in the course of doing so, they violate the right of an accused person. Maybe they violate that person's privacy, reasonable expectation of privacy, but they got the evidence.

This provision says that'll be excluded unless the exclusion would bring the administration of justice into disrepute. And it's up to the court to decide whether the admission or exclusion of illegally obtained evidence would bring the administration of justice into disrepute. So it's a complicated thing. There's like a ton of jurisprudence on that, but it's there. Sections 25 to 31.

is a series of interpretive provisions and it's hard to know sort of how much is in there but the courts have been pronouncing a little bit more and more on these things so we're starting to get a picture but here's an interesting one, section 25 says the guarantee in this charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada.

Tom M.J. Bateman (47:45.617) Okay, so this is a real hornet's nest, but what it's suggesting is that we have the Charter of Rights, which is basically a catalog of individual rights, but we have Aboriginal rights that have been recognized either by the Royal Proclamation of 1763 or by treaties signed with Aboriginal peoples, and the Charter shall not be interpreted in a way to dissolve, affect, or abrogate

Aboriginal rights, which may be different from and even incompatible with charter rights. so it's an interpretive provision, it's like bit of a set of advice to judges about how they shall interpret the charter when a potential conflict with an Aboriginal right comes up. Another example.

is section 27 this charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians. Okay, so I'm not even sure what that means but it does suggest that courts have to kind of be aware that Canada is a multicultural country and that when they interpret the charter in a particular case they have to keep that in mind.

And it's been referred to a few times, I think most notably in the Keekster case from 1990, but it hasn't had a lot of traction. So those are the interpretive provisions. Section 32 describes the application of the charter. The very quick way to explain this is that the charter applies to governments and not to private parties. So I'm not bound by the charter. The government of New Brunswick is bound by the charter.

And so that's kind of roughly what that means. Though that's what I wrote my PhD dissertation on. So it's a little bit more complicated than that. Section 33 is a notwithstanding provision. And perhaps we'll talk about that a little bit more later, but section 33 allows either a legislature in a province or the permanent of Canada to pass a law that is shielded from either sections

Ian Van Harten (49:47.682) Thank

Tom M.J. Bateman (50:02.793) Section 2 or 7 to 15 of the Charter. And it's a way for the legislature to make sure that this law will not be challenged by anyone based on those provisions of the Charter. It was put in there at the insistence of the provinces, especially the so-called Gang of Eight.

when the Charter was being negotiated in November of 1981. The provinces did not want to be fettered by judicial interpretation of their laws in light of Charter rights. And so they said, we'll go along with the Charter, but it's got to have Section 33 in it. And if there's no Section 33, there's no deal. And Mr. Trudeau had to swallow really hard.

and really make a compromise. And so Section 33 is in there. And it was thought by many that, it's in there, but it'll never be used because the charter rights are so powerful that a provincial government that used Section 33 would be castigated by a population for being against people's rights. And that was true in the early days, except in Quebec.

Quebec has used Section systematically and it's used it quite recently and without much rancor among Quebecers, by the way. And it has been used a few more times by provincial governments outside of Quebec. So we're at an interesting period with Section 33 and the rest of the charter, but that's basically what the charter is.

Section One: Reasonable Limits on Rights

Ian Van Harten (51:53.422) Okay, well great. Good overview there. Well, so let's go to section one, because I don't know if you included that in your overview, but I'm glad, because I want to spend some time there. So there's been some discussions about the Charter of Rights and Freedoms and questioning...

Tom M.J. Bateman (52:10.025) No, I didn't. I forgot.

Ian Van Harten (52:21.528) how robust it is in terms of protecting rights and freedoms. And a lot of people pointed this section one as evidence of maybe it's not so robust. So I have it here. So I'll just read it quick.

The 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. The key phrase there may be subject to reasonable limits. And it's not, it's a little bit vague as what constitutes a reasonable limit.

So can you talk about section one and why it was put in and the impact that it has?

Tom M.J. Bateman (53:12.713) Yes, I said Section 15 might be the most complex provision in the Charter. Section 1 might be the most important provision in the Charter. And it emanates from a very simple principle, which is that rights are important, but they cannot be absolute. So for example, Section 7 of the Charter says everyone has some

the right to life, liberty and security to person and the right not to be deprived thereof except in accordance with the principle of fundamental justice. Okay, so the front part of that provision is everyone has the right to life and liberty. Okay, so if I have a right to liberty, that means liberty. That means I can do what I want. That means I can kill my neighbor. That means I can burn his house down because that's an exercise of liberty.

And your answer is, no, you can't. And civil life would be impossible with such exercises of liberty. OK, perfect answer. And all that means is that a right to liberty cannot be absolute. Every right is subject to limits. And those limits are often

defined by the existence of other rights. So I've got the right to life, liberty and security of the person according to section seven. So I've got the right to liberty, but my neighbor has a right to life. so there's a sense in which my liberty is kind of limited by other people's rights to life, for example. And it is the job of government

to honor or safeguard the interest in life of Canadians. And so it can pass a law proscribing murder. And that means my right to liberty is reasonably limited by laws criminalizing murder. And so, yeah, my right to liberty is limited, but that's a good thing.

Ian Van Harten (55:40.11) Thank

Tom M.J. Bateman (55:40.329) That's actually a really good thing. and section one fundamentally gives expression to that point. And so.

There's an awful lot of debate actually over the exact wording of section one. But anyway, we have a robust and at times stringent standard of justification the Crown must meet when it tries to defend a law against charter attack. Maybe what I'll do is I'll talk about one seminal case and we can see how it works.

So there used to be a provision in our Narcotic Control Act. In fact, that act no longer exists. Now it's called the Controlled Drugs and Substances Act. But many years ago, there was the Narcotic Control Act. Section 8 of the Narcotic Control Act said the following, that a person who is found, beyond a reasonable doubt, to be in possession of a proscribed drug,

like cocaine or heroin or something like that, would also be considered guilty of possession for the purpose of trafficking in that drug unless that person could prove on a balance of probabilities that he was in possession of that drug for the purpose of consumption only, not trafficking. So it's a classic reverse onus provision.

which means that normally in criminal cases, the Crown must prove the elements of the offense against the accused. That's part of a presumption of innocence. But Section 8 of the Narcotic Control Act was structured so that you are, once the Crown proves possession, then you are presumed guilty of trafficking unless you, the accused, can prove that you are not in possession for the purpose of trafficking.

Tom M.J. Bateman (57:50.453) And so a guy whose name is David Edwin Oakes was found one time with eight one gram vials of hashish oil plus 620 bucks in his pocket. And he was charged with possession and trafficking. And this was sort of relatively early in the life of the charter. And he said that the reverse onus provision

is actually contrary to his presumption of innocence under section 11 D of the Charter and in strict terms he was absolutely correct. Now if you think about this from a public policy point of view you might say okay now wait a minute drugs are a scourge and the consumption of narcotics is bad but the trafficking in narcotics is really really bad.

because trafficking multiplies the number of consumers of bad things. And so parliament should be entitled to criminalize trafficking with a high degree of severity and stringency. The problem is that it's kind of easy for the crown and the police to get people for possession, but it's harder to get people for trafficking. Like the evidentiary burden is very difficult.

even though the social importance of getting people for trafficking is extremely high. And so Parliament, you might say, is kind of justified in dealing with an extremely serious social problem by tempering or relaxing the presumption of innocence in cases like these. And Oaks said, well, come on now, rights are rights. Either I'm presumed innocent and we have a charter or the thing is useless.

And so you can see, and this is how a lot of charter cases look. They're hard. They're tough. And in any case, the court took the opportunity of Oakes' case to try to be systematic in unfolding the actual meaning of section one. And it basically came up with a scheme which looks like the following.

Tom M.J. Bateman (01:00:17.759) First, does a law violate a right? If it's yes, then the next question is, okay, now given that a right has been violated, is the limit on that right reasonable in the circumstances according to the terms of section one? The charter claimant must prove the violation of the right, but the Crown representing the state must demonstrate

a justification for that limitation. And so that's the section one analysis. First of all, the Crown must say the purpose for the law limiting the right is demonstrably justified. There's a pressing and substantial interest in having that law. Second point is the proportionality analysis that the means the Parliament has taken

to limit that right are proportional to the objective. First of all, that there is a rational connection between the purpose parliament had and the means it used to attain that purpose. In this case, coming down hard on trafficking would be rationally connected to the purpose of limiting

a serious social scourge represented by trafficking and drugs. Next point is the minimal impairment analysis, which is, has Parliament undertaken a measure that minimally limits rights while at the same time advancing the legitimate policy objective? Or has it gone too far?

in limiting a right in order to attain the objective. And then the last point, the proportionality leg is to compare whether the salutary benefits of this limitation on a right outweigh the deleterious consequences of the limitation of the right on this charter claimant and others like him or her. So that's the analysis that

Tom M.J. Bateman (01:02:42.375) all courts now undertake in section one analysis. In Oakes' particular case, the argument was that there was actually no rational connection between limiting, that is presuming guilt among all possessors of drugs and attaining the goal of reducing trafficking. And that's because if you are,

found in possession of drugs, whatever the quantity, you are still presumed guilty of trafficking. But what Justice Dixon said for the court in Oaks was that really, rights would have been much more appropriately honored if Parliament made a distinction as to quantity of drugs. Because it's

It's easier to infer possession for the purpose of trafficking if you've got a trunkload of cocaine. Much harder to presume possession for the purpose of trafficking if you've got one marijuana joint. And that would be an important distinction that would establish a rational connection between the means and the objective. That wasn't the case here. So that's one of the sort of monumental

cases in the development of Section 1 jurisprudence and we can see sort of the kind of thinking that that Crown lawyers and courts have to engage in to figure out whether a limit on a right is reasonable or not in the circumstances of a case.

Ian Van Harten (01:04:24.236) Yeah, it's really interesting because often you hear people talking about rights just in a very black and white, somewhat simplified way, just I have freedom of expression, period, full stop. And so it's...

But each case is complicated and the details of the case in the context matters a lot and there's a lot of discussion in between. so yeah, it's interesting to see how complicated these are and the gray areas when it comes to our rights and freedoms.

Ian Van Harten (01:05:05.806) Hang on, sorry, I think we lost your audio.

Tom M.J. Bateman (01:05:12.745) my back.

Ian Van Harten (01:05:12.821) there you are. You're back.

Tom M.J. Bateman (01:05:16.277) Okay, I'll start again. Early in the life of the Charter, there were some real low-hanging fruit, easy cases for the courts to decide. One famous case from 1984, if I think it is, was the Big Drug Mart case in which a Provincial Lords Day Act was struck down based on Section 2A of the Charter, the freedom of religion provision, because...

Alberta had legislation which forbade most commercial activity on Sundays. And the Supreme Court said, well, like why Sunday? Well, it goes back and it looked at the history of legislation closing shops on Sunday. And it's all related to the Christian day of Sabbath. And that's like an obvious, like the purpose of the law was to enforce a Christian

Sabbath rest and the court didn't have any difficulty saying that this was contrary to section 2a of the charter but once the low-hanging fruit got picked we're into the 1990s and the 2000s then then chart cases get more more complicated and

less low-hanging fruit. Furthermore, litigants are just interested in trying to see if they can get off a charge, you know, or they can achieve some kind of important to them public policy interest. And so they put, you know, sometimes very extravagant claims before the court and it has to deal with them in some ways. yeah, the...

you know, the courts themselves are divided on the results. The section one analysis is extremely complicated and you just can't predict how the courts can deal with it. In 1995, the Supreme Court of Canada dealt with a challenge to the Tobacco Products Control Act, which at that time had a near complete ban on advertising for cigarettes. And the obvious interest was advertising may increase

Tom M.J. Bateman (01:07:41.503) consumption of tobacco, consumption of tobacco causes cancer and cancer is bad and it's a perfectly legitimate interest of government to undertake measures to prevent the spread of cancer. And in this case, a good means of doing so would be to prohibit tobacco advertising. But of course, provision of tobacco advertising is a violation of the freedom of speech of people who want to advertise.

And already the court said in 1989 that economic speech in the foreign advertising is protected by section 2B of the charter. And so here we go. But the whole debate in the Supreme Court, nine judges, five to four decision, was all about section one justification of a limit on tobacco advertising. And lo and behold, a five judge majority says that the particular

total ban on advertising was contrary to the charter. And it made a lot of Canadians just like flip out, like, are you kidding? Yeah, but I don't know. If you're a believer in free speech, then you're a believer in free speech, right? Anyway, the conflict in Canadian society, I think on that one was replicated among the membership of the court.

Ian Van Harten (01:08:44.942) Hmm.

Ian Van Harten (01:09:08.75) And yet, because five to four is pretty close. So that's another thing is there's a lot of room for debate within these questions. So that's just another instance of how complicated these questions can be.

Tom M.J. Bateman (01:09:13.726) Yes.

Tom M.J. Bateman (01:09:22.089) Yeah.

Tom M.J. Bateman (01:09:28.265) Yeah, it is. another example of at the end of the day of the majoritarian logic of adding up the votes is what decides it. you know, many, many books have been written on the decision-making practices of high court judges. Unfortunately, almost all of them are American and almost none of them are Canadian. And that's because the American system is much more open.

Ian Van Harten (01:09:36.302) Mm-hmm.

Tom M.J. Bateman (01:09:57.393) and there are many fewer strictures placed on people talking about their experiences, let's say on juries, and limits on people talking about their experience as clerks to Supreme Court judges in the United States and so on. In Canada, there are very strict limits placed on law clerks, for example, about what they can say publicly about their work and their observations.

inside of the Supreme Court of Canada and the justices themselves don't talk much. so political scientists in particular and the Canadian public in general doesn't get much of a glimpse about what happens on the inside of these public institutions. And some people say just as well, it helps to preserve the mystique of the courts and that helps to retain public confidence in the administration of justice. But then other people say,

Well, we are a democracy, aren't we? And the public pays these people, don't they? And they are making decisions that really touch the welfare of thousands and millions beyond them. Why can't we see what's going on? So it's an ongoing debate.

The Notwithstanding Clause

Ian Van Harten (01:11:11.682) And adding to that, they're not elected. They're appointed. So it's another, Anyway, well, I mean, I'm sure we'll return to some of these controversies still. But let's move on to the notwithstanding clause. So you kind of gave an overview of it. But.

Tom M.J. Bateman (01:11:15.124) Yes, that's true.

Ian Van Harten (01:11:32.322) Let's see, so.

Ian Van Harten (01:11:41.198) Because we've been, so yeah, I'm just wondering how to tackle this now. What impact does the novice standing clause have on the charter, do think?

Tom M.J. Bateman (01:11:53.301) Sure. Well, the notwithstanding clause made the charter possible. Because back in 1981, many provinces, by which I mean provincial governments, and by that I mean the premiers and their cabinets, when they were negotiating with the feds over the Patriot and the Constitution, they didn't want a charter.

And you can say, well, that's just because they're bigots. Well, no. Alan Blakeney was the NDP Premier of Saskatchewan at the time. And he was a committed social Democrat and not a fan of the charter. And that's because the record of judicial treatment of labor rights and labor unions

in the Anglo-American democracies was pretty dismal. The rights of workers to unionize, to negotiate collective agreements, to strike legally were mostly created by legislation. And when courts were confronted with claims by employers that their employees were

combining and restraint of trade, is another way of saying unionizing, the courts affirmed the claims of the employers, not the employees. so Blakeney's argument was that a charter would empower all kinds of Canadians with rights claims and not just like the nice politically popular groups with rights claims, but everybody, businesses.

powerful people and that they'll use charter rights to squash the rights of workers, laborers, and so on and so forth. so he's saying, I'm actually worried about the policy power of courts under the charter because the charter can be used to undo many features of the welfare state.

Tom M.J. Bateman (01:14:20.817) Other premiers were concerned about the use of the charter to handcuff provinces exercise of their constitutional authority under the division of powers. And that would be true for Lougheed and several other premiers. Lougheed was from Alberta. And a couple of others, I'm thinking of Angus MacDonald from Prince Edward Island, were British constitutional traditionalists.

where there was never a judicially enforceable Bill of Rights against Parliament. And he thought that it would be comporting with the logic of parliamentary democracy for there to be parliamentary supremacy, which is that Parliament is the highest arbiter of the enforcement of rights and other civil liberties. And it's worked pretty well.

in Britain, in the other Commonwealth countries, and it's not broken Canada, and so we don't need to fix anything. So there was substantial opposition in these various ways to the charter, and when it came down to it, this was like literally a late night meeting in a hotel room in Ottawa.

It began with two attorneys general getting together for a drink, Roy McMurtry from Ontario, Roy Romano, attorney general for Saskatchewan, they're old buddies from law school days or something. So they get together and they talk and say like, okay, we're at the 11th hour here, there's no agreement on a charter or a patriation or an amending form or anything like that. Like, is there something we can do here to try and break the logjam? And they invited a couple of guys from Alberta, if I recall correctly.

and they started talking about some ideas and then they invited a couple of other people, other attorneys general from the other provinces and they forget to invite Quebec by the way to this late night meeting. That turned out to be like a really bad thing but in any case they started banging ideas around.

Ian Van Harten (01:16:35.843) Yeah.

Tom M.J. Bateman (01:16:39.197) And they said, well, what if we have like a notwithstanding clause because there's a precedent for it. was actually, there was a notwithstanding clause in the Canadian Bill of Rights of 1960s. So this thing wasn't coming out of thin air. And he said, yeah, maybe, and maybe we can tweak a couple other little things and so on and so forth. maybe we can, and know, and maybe we can get the feds to recognize provincial jurisdiction over non-renewable natural resources, like have a new section 92 or something like that. Yeah, maybe we can be tempted.

And so they fashioned a deal. They invited actually some federal people. think Jean Chrétien actually, yeah, he was actually there. And he got along really, really well with Roy Romano. And so Chrétien said, you know, well, yeah, maybe, yeah, maybe the boss can go along with this. You know, I'll have to put it to him tomorrow morning, but you never know, you know? And so Chrétien took this deal, this late night deal, which included section 33.

to Pierre Trudeau the next morning. And as I said earlier, Trudeau had to really think hard because this might be it. Like if he says no to this, the problems are gonna say, okay, fine, done. Like there's no crisis. Like we can carry on as we did up until now without a constitution, without an amending format, without a charter, nothing's gonna break. So we can just walk away from the table. And so the pressure was actually on Trudeau to accept the provincial offer.

And so Trudeau gets his Charter of Rights and the provinces get their Section 33. And the deal was done. And Trudeau and company hoped and expected that Section 33 would be there, but it would never be used because it would be too politically toxic for a province to pass a law notwithstanding Section

two and seven to 15 of the charter. Because then the provincial government would be painted as anti-rights and the enemy of the groups protected by those rights and so on and so forth. Well, it turns out very shortly after patriation, the Quebec National Assembly passed a law exempting every single law on the Quebec books from the

Tom M.J. Bateman (01:19:05.609) the force of sections two and seven to 15 of the charter and didn't hurt Rene Levesque a bit. And that's because the charter and all this stuff and Pierre Trudeau, like they had no currency in Quebec. And Canadians, I was like, were shocked and appalled and like, you know, how could they, you know, da, da, da. And that's just because Canadians, had to be, just never understood Quebec and they still don't really. And Quebec has been using

Section 33 intermittently ever since 1982. Most famously in 2019, I think it was, with Bill 21, which is an extraordinary piece of legislation requiring people working for the provincial government and in the public schools not to wear any garb identifying them with a particular religious faith. And like this is multicultural Canada and

And I think a lot of Canadians outside of Quebec are horrified. But Quebec says, well, we don't care what you think. We're different here. And we understand multiculturalism very differently. Quebec is a secular society. And your religious attachments and so on and so forth are private matters. And they are not to interfere with your public responsibilities. And so they pass Bill 21 and they insulate it.

from Charter Challenge using the Not Withstanding Clause, and it's still there, 64 or so percent of Quebecers heartily agree with the use of Section 33 to protect Bill 21, and about 33 % of Canadians outside Quebec also agree with Quebec's use of Section 33 to protect Bill 21 against the Charter. And so it's complicated. Ontario has toyed with using Section 33 to protect

certain laws it was contemplating. Saskatchewan has used it. Alberta is on the cusp of using it to protect a certain policy regarding transgender provisions operative in public schools in that province. so a little bit of the shine has gone off the charter. And

Tom M.J. Bateman (01:21:34.581) We're in we're in possibly entering a new phase in a certain kind of dialogue between legislatures and courts. And I'd say section 33 is like the big stick that now legislatures can use to dialogue with the courts. And in many respects, it's all up to public opinion as to whether this

continues or whether it comes to a stop. What may happen, and it's very hard to discern this, is that courts may kind of understand sort of what's going on, and they may react in one of two ways. They may begin to tone down the temperature of the decision-making to forestall the temptation by a legislature to

to use section 33 in response. Or a court may say, okay, let it rip. Let's just give the charter its full and most generous meaning and let the legislatures do what they may. And it'll be on them. So we'll have to see how things unfold. it looks like the verboten,

quality of Section 33 is melting away. Now it's thinkable.

Ian Van Harten (01:23:05.326) Yeah, it's interesting to see the sort of push-pull in terms of the different players. So you have the courts and the judges, you have the provinces, and you have public opinion, all kind of influencing the execution of charter rights. because, you know, we've been talking about how the charter gives courts a pretty big hand in terms of...

determining legislation. And so the notwithstanding clause gives the provinces some defense against that they can opt out. And there's that difference where court the judges are appointed, not elected, and provincial legislatures are elected. But even in terms of public opinion, you know, it's been interesting, even within the past few years, in Ontario, I think, the notwithstanding clause was invoked

or toyed with, like you were saying, a couple times. I think once with a negotiation with the teachers union, they were thinking about pulling it out, but then the public reacted in a huge way, and so they pulled back. But more recently,

There's been some discussion with I think some municipalities in Ontario who are coming forward and asking the the provincial government to invoke the Nominus Standing Clause to help deal with some of the homeless encampments. And that seems to have more public support. So there's a lot of kind of play within this, and it's not...

concrete or black and white how it's going to be received.

Tom M.J. Bateman (01:24:51.763) No, excellent comment. think you're absolutely right. And what you're suggesting is that these debates may actually be quite particular, that we're past a period where the very thought of using Section 33 is unacceptable. Now we're thinking about, well, maybe on this issue, it may make sense. On this issue, no.

And that's, you know, we're getting now kind of a more sophisticated account, I think, of the separation of powers, the role of courts versus those of legislatures, the intractability of certain public policy problems, and the extent to which courts might be standing in the way of a productive way of dealing with an issue, whatever it happens to be. So, yes, the...

It might be more like a circumstantial issue by issue evaluation of what is the appropriate thing to do. Yes.

Reading Rights Into the Charter

Ian Van Harten (01:26:03.662) So there's another aspect and this kind of comes back to the courts and the judges and the power they have with the Charter. There's this thing that the judges can quote read into the Charter and maybe infer things that aren't explicitly written there.

And I think one example of how this came up has manifested is there was a case where they read in some rights having to do with assisted suicide or allowing doctors to do an assisted suicide. And that it forced the government to create legislation around this. So can you talk about more about this reading in?

Tom M.J. Bateman (01:26:53.331) Yeah, I think you're talking about the Truchon decision or the Quebec Court of Appeal from a couple of years ago, maybe three years ago. I can't remember exactly right now. the Criminal Code from 1971 or so had a provision prohibiting assisted suicide, as it was called. And so I guess for obvious reasons, there'd be no criminal prohibition on

suicide per se, but assisted suicide means that I get you to kill me at my request. And parliament said, yeah, we don't think that's a good idea. And so they prohibited it. And in the age of the charter, this became challengeable like everything else did. And the Supreme Court in 1993 in the Rodriguez case,

considered whether the prohibition on assisted suicide is contrary to section seven of the charter. And it was a majority of the Supreme Court. was either four to three or five to four upheld the law banning assisted suicide. So assisted suicide stayed prohibited.

Slowly, public opinion began to change on this point. Sue Rodriguez, who died a very difficult and painful death of ALS or Lou Gehrig's disease, a nervous disorder which ultimately makes it impossible to swallow and then actually to breathe. So it's a difficult thing.

a lot of sympathy for her, and that helped to develop more sympathy with the idea of assisted suicide. In 2015, the Supreme Court of Canada in the Carter case was confronted with similar issues, and this time, the court, and it was unanimous, if I recall correctly,

Tom M.J. Bateman (01:29:21.013) said that the prohibition on assisted suicide is contrary to Section 7. It's unconstitutional. Struck it down. And then in a famous paragraph, I think it's paragraph 147 of the Carter decision, the Supreme Court said, but you know, we think that there are problems with assisted suicide because you can see how people could abuse it.

and murder could be sort of recast in creative ways as assisted suicide. And we can also see how a vulnerable dying person could be put upon by relatives and others told that they're extremely inconvenient and that they really don't want to live in the state that they are.

You you don't want to live grandpa like this, do you? You know, don't you just want to like put an end to it? And like, can't we help? And you know, that, that, that, that, that. And, and so who's doing the deciding in this case? And if it's the family doing the deciding, I mean, isn't that like a form of constructive murder for heaven's sakes? Okay. So that's the abuses to which assisted suicide is subject. So the Supreme court was alive to this, but they said, you know, you know, in cases where

At the end of life where death is reasonably foreseeable, there should be a mechanism for a person to request and receive medical assistance in dying, as it's Which means it's a nice, clean, medical, painless, effective way to die. And you need a practitioner who knows about pharmacology and so on and so forth who can administer the drugs.

properly and effectively to terminate that person's life. so paragraph 147 gave all kinds of guidance to Parliament about what a proper assisted suicide law might look like. And so in 2016, Parliament passed, I think it was called Bill C-14, which established the regime more or less that we have right now. But it said that

Tom M.J. Bateman (01:31:35.631) a to suicide is only available to persons whose death is reasonably foreseeable, which means they're at the end of life and it's not gonna be much longer. And only when they're in that window can they have access to medical assistance in dying. And of course, this made a distinction between people who were near death and those who were experiencing pain and suffering and so on and so forth, but who are not near death. And a person

in Quebec challenged the constitutionality of the law saying it made an unreasonable distinction between people who are near death and suffering and people who are not near death and suffering. In fact, you could argue that the people who are suffering and not near death have much more, know, a much greater case for suicide than the other group. And the Quebec Court of Appeals said, yes, you're absolutely correct. And so the provision limiting

medical assistance in death to those whose death is reasonably foreseeable was struck down. And that opened the floodgates, as it were, to persons who are suffering irremediably, but whether near death or not. the government of Canada chose not to appeal that decision to the Supreme Court of Canada, which it could have done if it wanted to. And that basically

said that the government was endorsing that decision by the Quebec Court of Appeal. so in this case, the Quebec Court of Appeal, it struck down a piece of the made law, but arguably it adopted the role of a legislature amending the law. And

The Supreme Court has done this in other cases as well. But in this one, the impact has been, I think, quite interesting because the federal government has turned around and has contemplated extending access to medical assistance in dying to mentally ill people.

Tom M.J. Bateman (01:34:02.293) who wish to die. And it got a lot of blowback from lots of people and lots of groups for that, not the least of whom were people representing disabled Canadians. So that one's kind of on the back burner for now. And who knows what's gonna happen. In the meantime, public opinion in principle is...

hugely in favor of medical assistance in dying, but quite circumspect on the particular circumstances in which medical assistance can be provided and like the terms on which and who can actually get access to it and so on and so forth. know, mature minors, huge differences of opinion about whether mentally ill people should have access to this and make sense because

The whole system is premised on informed, enduring consent by the patient to assistance in dying. But if mental illness affects your mental capacity to make such decisions, then like, what are we talking about here? So that's all very difficult. But in any case, the courts are in this interesting sort of play.

with governments, groups, and public opinion generally. So they're now part of the whole mix.

Ian Van Harten (01:35:37.134) Yeah, and I mean the whole medical assistance and dying discussion. Pride warrants a separate discussion, but just for the purposes of its implications from the charter.

Tom M.J. Bateman (01:35:52.469) Yep.

How Charter Cases Work

Ian Van Harten (01:35:54.286) So I'm wondering a bit of a different question. How do charter cases get dealt with or started? Can anyone kind of bring forth a charter case or is it really prohibitively expensive or how does that come about?

Tom M.J. Bateman (01:36:10.215) Okay, yes, it's really expensive. You might be looking at, you know, depending on certain circumstances, 20 to 35,000 bucks each step in the appeal hierarchy. Sometimes if your case is appealing to certain groups, you can get representation for free. Maybe an interest group might provide you with a lawyer.

because your issue is important to that particular interest group.

So that can happen. The federal government has operated a so-called court challenges program whereby it'll provide financial support to certain persons and groups who litigate on certain issues like women's equality issues or official language minority education issues and so on and so forth. And that program has been popular when liberal governments have been and not popular when conservative governments have been in. I think it's available right now.

But that might be one of the very first things to go if and when the conservatives assume government after the next election. But in any case, the typical pattern is this. I'm...

driving down the road, I get pulled over by a police officer. He says that I'm speeding and I say, well, I don't think so. And I'm not sure you, your machine's working there, Mr. Officer. And why are you picking on me anyway? I'm just a good guy. Why aren't you looking after the murderers and so on and so forth? Why are you just picking on drivers? And the police officer gets really upset and he says, get out of the car and open the trunk. And I open the trunk.

Tom M.J. Bateman (01:38:01.189) and the officer finds something of interest to the law and I'm charged not only with speeding but with possession of an unregistered weapon or something like that. And I go to court and I say I might be guilty of speeding but I'm going to plead not guilty to the possession of an unregistered firearm because the circumstances under which it was discovered by the police are contrary to my Section 8 right to be free from

unreasonable search and seizure. So I got a Section 8 charter case. And I just want to get off the charge. Like I don't care about Section 8, I don't care about the charter, I just don't want to go to jail or get a really big fine. And I don't want to lose my firearm either. And so I'm going to argue that the officer violated my right under Section 8 and that the evidence discovered

pursuant to the violation of my right should be excluded from the trial against me. And if the evidence of the gun is excluded from the trial, then the Crown has no way to convict me of possession of an unregistered firearm. So that's like a pretty typical case, actually. And motor vehicle cases are a giant piece of charter litigation, it turns out. Driving under the influence, massive.

body of of charter jurisprudence in the early years for sure. So that's how it goes. What this means is that in most cases there has to be a real live legal dispute in order to get me into court and to allow me to make a charter argument of some kind. There are cases where a charter argument can be made

when there is not a live legal dispute. So sometimes a government would like to know if a bill it is thinking about is contrary to the charter. And so what it might do is draft legislation and then submit it to its provincial high court or if it's the feds to the Supreme Court of Canada and say, can you...

Tom M.J. Bateman (01:40:22.431) tell us if this is contrary to section 15 of the charter. And this is called a reference procedure. And the court of appeal or the Supreme Court can refuse to answer the question if it wants, but can also choose to answer it if it wants. And it's a hypothetical thing. There's no live legal dispute. No one's been charged with an offense under that law, because it's not even a law, it's just a bill. But it'll give its opinion. And in practice,

that opinion is as authoritative as a decision in an actual legal dispute. Sometimes a dispute becomes moot, which means there's no longer a live dispute. There was at one time, but no longer. And a dispute is in the court. let's say like a litigant dies. But when that litigant was alive, there was a really important charter issue.

before the court. When the litigant dies, the issue becomes moot. There's no longer like a live legal dispute. Sometimes the court will continue to hear that case, even though it is moot, because of the important legal issue presented by that case when it was started. And in a way, it's a question of judicial economy, that this is moot, but this kind of thing

will probably come up again anyway. So how about if we deal with it now and that way we forestall all the effort that somebody else will have to undertake to bring it before us. So sometimes courts will do that. Sometimes there might be a lack of standing, which means like the actual legal...

Tom M.J. Bateman (01:42:15.312) of a person able to bring a certain legal issue before the court. even though a certain group may not or a person may not have standing, the court will say, yeah, okay, we'll hear the case anyway. So there are a couple of famous cases from the 1970s and 80s. The federal government in 1969 passed the Official Languages Act.

And that act simply declared that English and French shall be the official languages of Canada. And it didn't impose any legal obligations on anybody in particular. Like I didn't have to start learning French, for example, because we have two official languages. And so because that law imposed no obligations and no penalties for violating it on Canadians, there's no way for anybody to challenge it.

Ian Van Harten (01:42:52.63) Thank

Tom M.J. Bateman (01:43:12.019) because nobody could be charged with anything to bring them into court. But a guy wanted to challenge it saying it was unconstitutional. And so the court said, well, like you're not suffering any legal debility by having the Official Languages Act. So you really shouldn't be here. But it's probably a good idea for this act to be challengeable. And so you're taking the time to bring this. So, okay, we'll let you do it.

And so you have no standing, will relax the rule of standing. So anyway, these are technical things, but it means that courts in the age of constitutional review, Charter of Rights, will sometimes relax the rules that keep them in their own corner. By which I mean courts are preeminently adjudicative bodies.

That's what makes them different from legislatures. People who are in conflict with the law seek the courts as decision makers to solve their legal conflict with the law. And courts should not simply say, you know what, it's Monday and I don't like that law, so let's pass a ruling against that law. No, courts can't do that. They can't do that on their own initiative.

But in the age of the charter and the popularity of judicial review, blah, blah, blah, all that stuff, they do relax the rules that confine them to a purely adjudicative role and will extend themselves a little bit more into the policymaking world by relaxing the rules of mootness and standing and so on. then governments will encourage them to do that by asking them through reference questions to pronounce on the

the merits of a particular proposed law or whatever it is. And so, yeah, we have some curious variations on the adjudicative theme that are fairly common now in Canadian constitutional law.

Final Reflections on the Charter

Ian Van Harten (01:45:26.605) and

Okay, well, let's zoom back out if we can. We discussed quite a few different gray areas in the charter and a few areas of criticism. Maybe it gives judges, unelected judges too much power, or maybe section one kind of renders the whole thing moot, or maybe the notwithstanding clause renders the whole thing moot, or maybe it gives too much power to individuals

and minorities over communities. So there's a lot of debate and discussion around the charter. I'm wondering, again, at a high level, you can kind of give your assessment of the charter and the impact and these discussions we've seen. And maybe, you know, how do you see this evolving going forward? Do you see the way we interpret it or use it changing going forward? Or how do you see that?

Tom M.J. Bateman (01:46:29.074) Boy, it's a really good and complex decision and I'm terrible at prediction, especially when they concern the future.

Whenever an institution starts to exercise political power, it starts to attract attention. And in the age of the charter, the courts have attracted attention. And we're sort of kind of in a moment of populist criticism of elites of all kinds. And

Let me tell you, judges are elites. They are extremely highly educated. They are very highly paid. They have often come out of extremely highly paid positions in the private sector or in provincial courts of appeal or in universities or whatever it happens to be. So because they are elites,

exercising power and as you have said earlier they are appointed not elected they they're just sort of asking for it by by populist population politicians who are looking for sources of of political power that they think are averse to the interests of the people and

So it's a bit slow, but Canadian courts and judges are commanding a little bit more attention than they used to. One quick example is that for generations up to the 1990s, 2000s, the prime minister would be at the top

Tom M.J. Bateman (01:48:43.475) of an extremely discreet and hasty process of replacing Supreme Court justices. And a very quick review of that person's legal credentials and so forth would be done. And the prime minister would phone somebody up and say, would you like to serve on the Supreme Court of Canada? That person may want a day or two to think about it.

He comes back, says, yes, sit. And then maybe on page eight of the Globe and Mail, there might be an announcement that judge X has been appointed to the Supreme Court of Canada to replace judge Y or something like that. Like, just didn't, nobody knew about it very much. Nobody cared about it very much. And it just happened. away we went. Part of it was that in Canadian political life,

courts were adjudicated institutions primarily and they kept their nose out of public affairs. Judges themselves comported themselves quite discreetly. They would not be making big speeches at large conferences and so on and so forth. They would not be issuing press releases and so on and so forth. They would not be publishing very much while they were sitting judges. That's all different now.

and Chief Justice Marilyn McLaughlin, she was the chief from 2000 to 2019 or so. Very, very prominent chief justice, giving speeches, writing articles all the time and so on and so forth. More recently, Chief Justice Wagner of the Supreme Court of Canada.

issued like an open letter to the government of Canada complaining about its slowness in filling vacancies on superior courts across the country. Like an amazing intervention into public affairs really. so we know so much more. During the Harper period between 2006 and 2015, there were a few extraordinary public

Tom M.J. Bateman (01:51:10.933) clashes between Harper himself or his minister of justice Peter McKay and the Chief Justice of the Supreme Court of Canada and this is yeah pretty much unheard of and So so things are changing the courts are going to be increasingly examined from a political point of view not just a legal point of view and

Courts have neither the power of the sword nor the purse. They have the power of judgment. Their power depends on public confidence and esteem. And when that gets impugned and politicians persuasively begin to criticize judges for their ideological leanings or whatever it happens to be,

Okay, then we're entering a new phase in Canadian politics. And because the of our regime depends in part on a deep well of public confidence in the courts and their activities. They need it because whenever a court makes a decision, it's creating a winner and a loser. And it's very important for the losers to retain confidence in the courts, the judges.

and the whole process. And that's what, you know, a continued, highly politicized criticism of the courts may endanger. And the courts themselves need to be attentive to this because a lot of court decision-making has looked kind of political to observers like me.

and they've got to be careful about their role. So we are possibly entering a very difficult period and maybe there'll be some instability and I hope all sides just keep the temperature down and think about what they're doing.

Ian Van Harten (01:53:09.71) Thank

Ian Van Harten (01:53:38.338) Well, guess we'll leave it there for now. But such a fascinating conversation on the Charter of Rights and Freedoms. And Dr. Bateman, just really grateful that you lent your expertise here and allowed us to go into it in this much detail. So I really appreciate it. And thank you again.

#transcript