This month marks the 32nd anniversary of Canada's Charter of Rights and Freedoms, a landmark achievement in the promotion and protection of human rights, and which has served as a model for other countries drafting constitutions of their own. While Canadians have occasion and cause to celebrate this transformative constitutional document, silence is to be expected from Canada's Conservative government.
The government's consistent refusal to fully acknowledge the Charter's importance is regrettable not only as a matter of symbolism, but as one of substance as well. The repeated enactment of Charter-infringing laws and policies results not only in the infringement of rights, but in the use of taxpayer dollars to defend occasionally indefensible positions.
As a recent example, on the day before the Supreme Court disallowed the government's appointment of Justice Marc Nadon -- on grounds that involved the constitution, but not the Charter -- it unanimously struck down part of the Conservatives' so-called "tough on crime" agenda. The court ruled that a law retroactively abolishing the possibility of early parole for offenders who had already been sentenced violated the Charter's Section 11 protection against being punished a second time for a single offence. According to Justice Richard Wagner -- as it happens, a Conservative appointee -- this law "represents one of the clearest cases of retrospective double punishment." In other words, the government should have known better.
Indeed, this Government's record on respecting and upholding the Charter is dismal, at best -- something I have been asserting as a statement of fact, and that courts have concluded as matters of law. In recent months, courts in Ontario and B.C. have struck down various mandatory minimum penalties enacted by the Conservative government.
It is not as though the government was unaware of the issue; indeed, various Members of Parliament -- myself included -- have raised the question at committee hearings, and witnesses from the bench, bar, and academe have all offered their contributions suggesting such sentencing schemes are ill-advised from a constitutional perspective, as they may infringe protections against cruel and unusual punishment. Such was the case two years ago, when an Ontario court ruled that a mandatory minimum sentence imposed on a first-time offender was "fundamentally unfair, outrageous, abhorrent, and intolerable."
Yet, as is all too often the case, pleas for ensuring the constitutional compliance of legislation prior to its passage -- as mandated by law -- fall on deaf ears. The result is that the legislation is challenged in court -- at great expense to the taxpayer -- and many provisions are subsequently struck down.
Courts have ruled that Conservative laws and policies violate the Charter in areas as diverse as the treatment of Canadians detained abroad, evidence obtained with malfunctioning breathalyzers, and safe injection sites for drug addicts, to name but a few. In the latter instance, Chief Justice Beverley McLachlin found that the Government's attempt to close the Insite facility in Vancouver "contravened the principles of fundamental justice" and, with respect to Canadians with drug addictions, "(threatened) their health and indeed their lives."
In the case of Abousfian Abdelrazik, a Canadian denied the government's protection while he was wrongfully imprisoned and stranded for six years in Sudan, the Federal Court ultimately ordered his return to Canada, concluding that the government had violated his rights under the Charter. In Goulet v Canada, another case concerning a Canadian imprisoned abroad, the court chided the Harper government for ignoring the law, acting as if it were above the law, while showing disrespect for the rule of law as a whole.
Moreover, since the fall, a showdown has been underway between judges and the Government regarding the victim surcharge, a supplementary fee paid by offenders at sentencing. The government eliminated the possibility of waiving the surcharge for impoverished offenders, and judges have responded with creative solutions, such as allowing many years for payment. This is another matter that may well find its way to the Supreme Court before long.
While a healthy dialogue between Parliament and the courts should be encouraged -- and the two can work harmoniously together, through things like reference questions, to achieve clarity on the state of the law -- the government's pattern has been to adopt constitutionally suspect legislation, indifferent to the possibility that it may be struck down. Indeed, this has happened again and again.
As the courts have repeatedly sought to remind the government, it is not above the law and cannot act with impunity -- or immunity -- for its actions.
On this Charter anniversary, let us hope that the government of Canada will recommit to the Constitution of Canada, and to the rights and freedoms enshrined therein, rather than continuing to seek to circumvent the Charter as a matter of course.
Irwin Cotler is the former Minister of Justice and Attorney General of Canada. He is a Professor of Law (Emeritus) at McGill University.