Charter of Rights - A "kicking horse" for (Conservative) critics?

Critics haven't made convincing case, chief justice says

It is a myth that Canadian courts are soft on crime and that the Charter of Rights is responsible for criminals escaping conviction or receiving light jail terms, says Canada's chief justice, Beverley McLachlin.

In a speech to mark the Charter's 25th anniversary, Chief Justice McLachlin told a legal conference yesterday that the constitutional bill of rights has perhaps become a "kicking horse" for critics who believe that courts, citing rights violations, treat criminals too leniently.

• the country's incarceration rate remains high by world standards, with Canada recently ranking fifth of 15 countries.
• The Conservative government has also complained that judges are too lenient and, to that end, has introduced legislation for mandatory minimum jail terms for a variety of gun-related crimes
• A survey taken earlier this year showed Canadians do not have a solid understanding of the charter, with just under half of those surveyed saying they did not know that governments have the power to override certain court rulings, she noted.

Louise Arbour, the United Nations chief commissioner for human rights, told the conference the Charter of Rights has not lived up to its potential when it comes to social and economic rights, such as protecting people from poverty.

• "International monitoring bodies have often criticized Canada on its economic, social and cultural rights record and I truly believe that the recognition of those rights is the new frontier in charter protection," she said.


• The charter is increasingly out of reach for many Canadians because they cannot afford to go to court. It is therefore "unfortunate" that the Conservative government recently cancelled the Court Challenges Program, which helped fund litigants in challenging government laws on Charter grounds.

The Charter of Rights, signed on April 17, 1982, as part of the repatriated Constitution, gave judges the power to not merely interpret laws, but to strike them down if they were found to violate any of the established rights.

They include freedom of religion, expression and association, the legal right to life, liberty and security of the person, and the right against unreasonable search and seizure.
Equality guarantees, including freedom from discrimination based on age, sex, race, or disability, came into effect in 1985.

Former prime minister Jean Chretien, former Saskatchewan premier Roy Romanow and Ontario's chief justice, Roy McMurtry -- three men who were responsible for hammering out a constitutional deal that was endorsed by all provinces except Quebec -- relived an intense night of negotiating that went on behind closed doors in an Ottawa kitchen in November 1981.

The deal-maker to what has been dubbed the "kitchen accord" was adding the notwithstanding clause to the charter as a constitutional safety valve for politicians to override court rulings.
Mr. Romanow, who was Saskatchewan's justice minister at the time, told the conference he believes that the controversial and seldom-used compromise clause is a valuable check on the judiciary in light of it endorsing expansive rights, such as private health care.

Mr. Chretien, who was federal justice minister when the deal was signed, refused to be drawn into a debate about the notwithstanding clause, saying "you can debate it until you die" and it won't make a difference because it is entrenched in the Constitution.

Although there is an amending formula, history has shown making changes is virtually impossible because it requires the consent of seven of 10 provinces with more than 50 per cent of the population.

LINK: Ottawa Citizen
LINK: F-email - Court Challenges