CONSTITUTION Why this year could prove to be the Charters most controversial

CONSTITUTION Why this year could prove to be the Charters most controversial by Kirk Makin, April 15, 2012, The Globe and Mail
Created 30 years ago amid immense political controversy, the Charter of Rights and Freedoms could easily have become an empty shell. Instead, its guarantees of liberty, equality and fairness have permeated political life and Canadian cultural consciousness. Yet, for all the contentious issues it has settled, the Charter is poised to become more relevant than ever. A federal government with an ambitious agenda of reform is running headlong toward the one institution that has the power to send it back to the drafting board – the judiciary. … And a wave of new challenges is surging forward, including to mandatory minimum sentences, electronic surveillance and enhanced police powers. Prime Minister Stephen Harper may not face strong opposition in Parliament or from the provinces, but his policies are brushing up against more core legal roadblocks than any of his predecessors faced. Many legal experts believe that the Charter could be used to block mandatory minimum sentences, a crackdown on refugees and measures that will pack more inmates into already-overcrowded prisons. … With lower-court judges starting to dismantle some legislation, the burning question becomes: What will the Supreme Court of Canada do? … “Already, there are signs of pushback from the courts,” said law professor Jamie Cameron, of York University’s Osgoode Hall Law School. “It’s no secret that the Harper government is determined to test the limits of its power, for example, with criminal law, refugee law and Internet surveillance.” The government’s biggest courtroom loss came last fall, when the Supreme Court of Canada ordered it to keep its hands off of Insite, a supervised drug-injection clinic in Vancouver. The decision reverberated through the judiciary; serving for many judges as a sign from the top that it will act boldly when a situation warrants it. … When a judge finds that a Charter guarantee has been violated, the government is then compelled to show that the breach is “justifiable in a free and democratic society.” The key yardsticks in this analysis are whether the goal of the law was important enough to justify breaching a Charter right and whether less intrusive ways of achieving the same goal were available. After 30 years and hundreds of cases, some decidedly elastic concepts have also been added to the mix – such as whether the law was “arbitrary” or “grossly disproportionate” to the government’s goal. The next laws in line to fall may be some of the mandatory minimum sentences contained in a recent omnibus bill – Bill C-10. Queen’s University law professor Donald Stuart predicted that among the first to go could be a mandatory minimum sentence for growing as few as five marijuana plants. Echoing a widely held view in the legal community, Prof. Stuart argued the provision is so “simplistic and ridiculous” that it could cause the courts to breathe life into a little-used Charter guarantee against cruel and unusual punishment. [Emphasis added]

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