25th Anniversary Top 10 Charter Rights Cases Part 1.

The top 10 Supreme Court of Canada Charter of Rights Decisions on the 25th anniversary of the Charter (2007) [positions 1 thru 4] And the most important Court decisions at the time.  Provided as a background, courtesy “The Court” blog.

1. R. v. Oakes, [1986] 1 S.C.R. 103; (February 28, 1986)

The Supreme Court of Canada held (7-0) that a reverse onus clause in the Narcotic Control Act, which required an accused to rebut a presumption of possession for purposes of trafficking, violated s.11(d)’s presumption of innocence and was not justifiable as a reasonable limit under s.1 of the Charter.

Without question, Oakes has been the most frequently cited and most dominant decision in the first 25 years of Charter history.  Though the Court would have developed a standard under s.1 to test the reasonableness of the legislature’s objective and the means adopted in any event, Oakes is a much more than a test of reasonable limits.  It is iconic and a symbol of the Charter‘s goal of maintaining balance between the rights of individuals and the demands of democratic society, and equilibrium between the institutional roles of the legislatures and the courts.

At the time it was decided, Oakes decision moved the section 1 discussion away from the unrealistic comparative law exercise attempted in earlier cases to a structured analysis which focuses the inquiry on each of the key elements of necessity that should be respected before abridging rights in a constitutional democracy.  While it is applied contextually and with varying intensity, the Oakes test created the defining methodology of Charter analysis.

By setting a strict standard of justification under s.1, Oakes had a strong influence on the Court’s conception of rights; to avoid a s.1 analysis, the Court has, in some instances, placed definitional limits on the scope of the Charter guarantees. By providing a blueprint on the question of “reasonable limits”, Oakes has also had a powerful influence on governments, particularly in the area of legislative drafting.

2. Reference Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; (December 17, 1985)

The Supreme Court of Canada invalidated s.94(2) of the Motor Vehicle Act (7-0).  The provision made it an absolute liability offence, punishable by imprisonment, to drive while prohibited or suspended from driving.  The Court held that s.94(2) interfered with s.7′s guarantee of liberty of the person in a way that violated the principles of fundamental justice.

Section 7 is the Charter‘s most abstract and potentially far-reaching guarantee.  That is why those who drafted and negotiated this provision clearly intended that its scope be purely procedural in nature. Then Justice Lamer wrote for a majority in the Motor Vehicle Reference which forged fearlessly ahead to give s.7 a substantive interpretation, against the design of the drafters and the lessons from the United States. The Motor Vehicle Reference has been seen as a major declaration of principle relating to Charter interpretation and the role of the courts, which set the Court’s policy against originalism and approved an expansive approach to Charter.

This decision provided the conceptual framework for the evolution of a significant jurisprudence under s.7.  In practical terms, the Motor Vehicle Reference enabled the Court to invalidate the Criminal Code‘s provisions for therapeutic abortion and constructive murder; it provided a foundation for the constitutionalization of defences, including intoxication, duress and abuse of process; it generated the void for vagueness and overbreadth doctrines; and has led to the articulation of a variety of principles of fundamental justice.  Most recently, the Court found in Chaoulli v. Quebec that provincial legislation which prohibited private health care insurance was an unjustifiable violation of s.7.

Precisely because the boundaries of substantive review are so difficult to define, the s.7 jurisprudence which had its genesis in the Motor Vehicle Reference has provoked some of the most significant debates about judicial review to date.

3. Hunter v. Southam Inc., [1984] 2 S.C.R. 145; (September 17, 1984)

The Supreme Court of Canada held (8-0) that prior authorization is a precondition for a search and seizure to be valid under s.8 of the Charter, and that warrantless searches are prima facie unreasonable under s.8.  The Court also held that a s.8 search must be authorized by a person who is neutral and impartial, and capable of acting judicially.

Hunter v. Southam was one of the Court’s first Charter decisions.  It was unclear, at the time, how the Court would respond to the Charter, and whether it would adopt a different approach to entrenched rights than to the statutory Canadian Bill of Rights.  By adopting a purposive approach to Charter interpretation, Hunter v. Southam gave life to the legal rights provisions and sent the message that the Court intended to take its Charter mandate seriously.

The decision was important in its own sphere, giving rise to a warrant requirement that was nowhere articulated in the previous authority, and setting the stage for an aggressive body of law protecting section 8. The rule of law had a large presence in the late Chief Justice Dickson’s jurisprudence, and it is significant that he took the lead in this decision, making an important and early pronouncement that intrusions on an individual’s privacy must satisfy rule of law requirements.  After finding a breach of s.8, the Court provide a judicial remedy, stating, instead, that it was Parliament’s responsibility to bring its legislation into compliance with the Charter.

4.  R. v. Morgentaler, [1988] 1 S.C.R. 30; (January 28, 1988)

The Supreme Court of Canada held (5-2) that Criminal Code provisions which criminalized abortion, except in cases of “therapeutic” abortion, violated s.7 of the Charter and were unconstitutional.

R v. Morgentaler represents a significant Supreme Court foray into a highly controversial moral, ethical and political debate about women’s reproductive rights and abortion.  It’s earlier Morgentaler decision, which predated the Charter (1975), failed to support the women’s movement and its goal of legalizing access to abortion.  For many, the Court’s second decision in R. v. Morgentaler would become a symbol of the Charter‘s hopes and aspirations.  Though earlier decisions attracted widespread public attention, the Court’s decision to invalidate the Code’s framework for therapeutic abortions was a blockbuster.

Rather than address the constitutional status of the right to seek an abortion, the majority reasons focused on the procedural flaws of the legislation.  That allowed the Court to invalidate the provisions and at leave room for Parliament to re-enact measures which cured the flaws and retained certain limits on abortion.  By virtue of Parliament’s inability to enact successor legislation, abortion has effectively been legalized in Canada.

Morgentaler has had a huge impact on the lives of women and has also exerted a strong influence on the s.7 jurisprudence.  To avoid commenting on autonomy and the right to seek an abortion as an aspect of liberty”, the majority reasons turned their attention to “security of the person”.  In addition, the majority reasons relied on a concept of “manifest unfairness” to support the conclusion that Parliament’s scheme violated s.7′s principles of fundamental justice. Finally, Madam Justice Wilson’s interpreted “liberty of the person” as a guarantee of “personal autonomy over important decisions intimately affecting … private life”.  That definition of liberty has now been adopted by the Court.

Courtesy The Court blog Article here; http://goo.gl/dAzxI

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