25th Anniversary Top 10 Charter Rights Cases Part 2.

The top 10 Supreme Court of Canada Charter of Rights Decisions on the 25th anniversary of the Charter (2007) [positions 5 thru 8] Provided as a background, courtesy “The Court” blog.

5. Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 (February 2, 1989)

The Supreme Court of Canada held (4-2) that legislation which made citizenship a requirement to practice law in British Columbia violated s.15(1) of the Charter and was not saved by s.1.

Section 15 of the Charter was deferred until1985, and the Supreme Court’s first pronouncement on the equality guarantee, in Andrews v. Law Society of Upper Canada, was met with great anticipation. Several conceptions of equality had been proposed, and it was up to the Court to choose a direction for s.15.  That is the context of Mr. Justice McIntyre’s opinion in Andrews, which made fundamental choices about the scope of s.15 and the relationship between the right and its limits under s.1.

The Supreme Court definitively rejected a formal definition of equality based on same treatment in favour of a conception which would focus on remedies for discrimination.  In doing so, the Court endorsed an effects-based approach which confirmed s.15’s concern with redressing histories of group-based disadvantage and exclusion.  It is notable that the Court limited the scope of s.15 to the grounds enumerated by the guarantee, and to analogous grounds, such as citizenship status.

Even though ten years passed before the Court agreed on a definition of discrimination in Law v. Canada, Andrews chose a model which opened the door to a series of significant decisions under s.15  As one panelist remarked, all that is right and wrong about the s.15 jurisprudence begins with Andrews.

6. R. v. Stinchcombe, [1991] 3 S.C.R. 326; (November 7, 1991)

The  Supreme Court of Canada held (7-0) that the accused has a right of full answer and defence under s.7 of the Charter, and that the duty to disclose applies to all relevant information in the Crown’s possession and extends to all offences.

The decision to impose a duty of Crown disclosure, although purporting to have been based primarily on common law principles, was made possible by the Charter.  Even so, there is widespread agreement that Stinchcombe has changed the practice of criminal law more dramatically than any other decision. On the downside, Crown disclosure has added millions of dollars to the cost of prosecuting cases and caused a dramatic increase in the length of trials and in delays in getting cases tried. In that regard, Stinchcombe may have contributed to a perception that the Charter has imposed unacceptable burdens on the criminal justice system.  On the positive side, Stinchombe enables the accused to prepare for the defence of cases and has invariably reduced the risks of wrongful conviction.

Crown disclosure, as an aspect of full answer and defence under s.7, brought the rights of the accused into conflict with the rights of victims, particularly the victims of sexual offences.  That tension was reflected in key decisions of the 1990s which had a high profile, including R. v. Seaboyer, R. v. O’Connor, and R v. Mills.

7. R. v. Sparrow, [1990] 1 S.C.R. 1075; (May 31, 1990)

The Supreme Court held (6-0) that a charge under the Fisheries Act, against an aboriginal who claimed that his right to fish was protected by the Constitution, is governed by s.35(1) of the Constitution Act, 1982. Though section 35(1) of the Constitution Act, 1982 is not part of the Charter of Rights and Freedoms, the development of a significant case law under this provision has been an integral part of the Supreme Court of Canada’s rights jurisprudence in the 25 years since 1982. The decision in R. v. Sparrow was a landmark which created a doctrinal framework for the protection of aboriginal rights under s.35(1). First and foremost, the Court’s opinion in Sparrow articulated a dynamic, progressive and expansive approach to aboriginal rights.  In doing so, the Court rejected a frozen rights analysis and defined the extinguishment of aboriginal rights narrowly. In addition, the Court created a standard of justification that is specific to s.35(1) and parallels the s.1 analysis in Charter cases.  In this, Sparrow established a standard for aboriginal rights and forged a link between s.35(1)’s rights and the rights that are protected by the Charter.  By setting the s.35 jurisprudence in motion, Sparrow has had a profound effect on relations between aboriginal peoples and the Crown.

8. Vriend v. Alberta, [1998] 1 S.C.R. 493; (April 2, 1998)

The Supreme Court of Canada held (8-0) that provincial human rights legislation which excluded sexual orientation from its list of prohibited grounds of discrimination violated s.15(1)’s equality guarantee.  To remedy the infringement, the Supreme Court further held (7-1) that sexual orientation should be “read in”, or added, to the legislation’s list of prohibited forms of discrimination. Like R. v. Askov and Ford v. Quebec, Vriend v. Alberta made headline news across Canada.  Though the Court had considered sexual orientation in earlier decisions, Vriend confirmed that s.15 of the Charter prohibited discrimination against the gay and lesbian communities. In this, Vriend provided an important foundation for the Supreme Court’s subsequent decisions in M v. H and The Same-Sex Reference. Whether and when legislation recognizing gay marriage would have been enacted in Canada, absent these decisions, is open to question. The Court’s decision to read sexual orientation into Alberta’s human rights legislation represents a highwater mark for remedies under the Charter.  Though the legislature had made an explicit decision to exclude this ground from its human rights statute, Vriend re-drafted the legislation to include sexual orientation in the list of prohibited grounds of discrimination. In doing so, the Court’s decision moved then Premier Ralph Klein to the brink of a decision to invoke s.33. Vriend was also the first Supreme Court case to discuss and endorse the concept of a dialogue between the courts and legislatures. Those who favour a theory of review based n dialogue view Vriend as a bold decision on institutional relations. Others are critical of the remedy – and view it as an appropriation of legislative function by the Court – consider Vriend to be more like a ‘monologue’ than a dialogue between the courts and legislatures.  Yet another view is that Vriend laid the foundation for a concept of dialogue that has arguably weakened the impact of the constitutional message.

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

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