25th Anniversery Top 10 Charter Rights Cases Part 3.

The top 10 Supreme Court of Canada Charter of Rights Decisions on the 25th anniversary of the Charter (2007) [positions 9 thru 10] Provided as a background, courtesy “The Court” blog.

9. Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 265; (December 15, 1988)

The Supreme Court of Canada held (5-0) that Quebec legislation which prohibited the use of English in outdoor advertising violated s.2(b) of the Charter and could not be saved under s.1. The Court also held that it was permissible for the province to invoke a “standard form” override clause, but that it was impermissible for Quebec to give s.33 retroactive effect to April 17, 1982. Against the backdrop of Quebec’s opposition to the constitutional reforms of 1982, and the central importance of the Charter‘s language rights, Ford v. Quebec was an important test of the Supreme Court’s resolve.  In addressing the s.33 issue, the Court concluded that once certain requirements of form are satisfied, the decision to invoke the override belongs exclusively to the legislatures and is beyond judicial review. On the question of language, the Supreme Court held that a prohibition on the use of English in outdoor advertising violated s.2(b)’s guarantee of expressive freedom and could not satisfy the requirement of minimal impairment under s.1.  That conclusion prompted then Premier Robert Bourassa to enact legislation in response to the Supreme Court’s decision and to rely on s.33 in doing so. Many are of the view that Quebec’s decision to use the override in the context of English language rights had serious consequences for the Meech Lake Accord, which failed in 1990.  Many are also of the opinion that the inflammatory circumstances of the override’s use in this instance placed a deep chill on s.33.  At present, the override remains politically unavailable to legislatures who might otherwise take issue with Supreme Court decision making.

10. (tied) Law v. Canada (Min. of Employment and Immigration), [1999] 1 S.C.R. 497; (March 25, 1999)

The Supreme Court of Canada held (9-0) that a Canada Pension Plan provision which limited access to survivor’s benefits on grounds of age did not constitute discrimination and did not violate s.15(1) of the Charter.  Prior to its decision in Law v. Canada, the Court had been unable to agree on a definition of discrimination.  As a result, the s. 15 jurisprudence remained unsettled in the decisions leading up to Law.  There, all members of the Court joined Mr. Justice Iacobucci’s path breaking opinion, which endorsed a substantive approach to equality – informed by a purposive and contextual analysis, and established respect for human dignity as the guiding principle of s.15. Ten years after Andrews v. Law Society of British Columbia, Law v. Canada created a doctrinal framework to govern claims arising under s.15.  The Law test established criteria to advance the guarantee’s purposes and prohibit forms of discrimination that violate human dignity.  In doing so, Law also ensured that the legislatures would not be prevented from drawing the kinds of distinctions between individuals and groups that are an unavoidable feature of democratic governance.
By adding layers of complexity to the equality analysis, Law has raised the question whether it has become too difficult, today, for claims to succeed under s.15.

10. (tied) R. v. Collins, [1987] 1 S.C.R. 265; (April 9, 1987)

The Supreme Court of Canada held (5-1) that evidence obtained by a search that is unreasonable and in violation of s.8 of the Charter should be excluded under s.24(2) if its admission would bring the administration of justice into disrepute.  The decision to develop the fair trial dichotomy for the exclusion of unconstitutionally obtained evidence (in which “self-incriminatory” and later “conscriptive” proof would have to be excluded to preserve the fairness of the trial) has caused the rejection of critical evidence in thousands of cases, and has bedeviled the impaired driving area in particular. This coupled with the acceptance that an illegal search is necessarily an unconstitutional search (even though an illegal detention is not necessarily an unconstitutional detention) has had a significant effect on the prosecution of cases. Had a more miserly exclusionary standard been adopted, it is likely that criminal litigation would not be the Charter based body of law it now is, as exclusion provided the incentive for litigating Charter rights.

10. (tied) R. v. Askov, [1990] 2 S.C.R. 1199; (October 18, 1990)

The Supreme Court held (9-0) that a delay of almost two years in bringing charges to trial violated the accused’s right, under s.11(b) of the Charter, to be tried within a reasonable time. The charges against the accused were stayed as a result.  In terms of raw impact, R. v. Askov was one of the Supreme Court’s most dramatic decisions in the first 25 years.  Thousands of criminal charges were stayed following the Court’s conclusion that institutional delay could not excuse a violation of s.11(b)’s guarantee of trial within a reasonable time.  Had Askov‘s guidelines been more strictly enforced in the subsequent case law, the decision might have had a higher ranking in the top 10 list.  Still, Askov‘s impact on the criminal justice system cannot be easily forgotten.  And, as burdens on the system remain a challenge, Askov serves as a reminder that the institutions of the criminal justice system must comply with s.11(b) and its guarantee of trial within a reasonable time.

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

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