The Charter 25 years later: the good, the bad, and the challenge.

• Author: McLachlin, Beverley
• Position: Law overview

[ILLUSTRATION OMITTED]

Introduction

This year, as we celebrate the 25th anniversary of the adoption of the Charter, journals and newspapers are replete with evaluations. Some are positive, some less so. Some are downright critical. I would like to offer my reflections on the good news and the bad news about the Charter, a quarter century on.

Let me begin with a declaration of interest. Over the years I've said and written a lot about Canada's constitutional bill of rights. My first foray, written when I was still a callow law student, was an article arguing that Canada should not constitutionalize rights, based on a comparison of rights protection in the U.S. under an entrenched bill of rights, and rights protection in Canada without one. As a judge appointed the year before the Charter was adopted, I initially approached the task of interpreting it and applying it with an attitude of disinterested curiosity: what would it produce? Gradually, as I watched the jurisprudence develop, I came to the conclusion, which I still hold, that on the whole the Charter has been a good thing for Canada.

But that does not mean that there are no concerns. The Charter has changed the Canadian legal and political landscape profoundly. Some of these changes have down-sides, or at least consequences that need to be managed. I proceed today on the basis that after 25 years of Charter, it is time to look not only at what the Charter has improved, but at what remains to be considered.

I will begin by reviewing some of the benefits that the Charter has brought. I will then turn to the concerns, discussing them under two heads: (1) What are not concerns; (2) What remain legitimate concerns.

The Benefits

First, the benefits that the Charter has brought. We have heard much about the Charter's virtues, so I can be brief. In a nutshell, I believe that the Charter has fulfilled Pierre Elliott Trudeau's hope of making Canada a more just society. Maybe not the just society, or even always a just society; that is too much to ask of any document, however firmly it may be entrenched. But more modestly, a more just society.

The rights of those detained by the state are better protected because of the Charter. We have a fairer criminal justice system because of the Charter. The Charter has strengthened the protection of minority language rights and the mechanisms and attitudes that help our nation of diverse groups to live together. The Charter has brought the promise of a modest measure of accountability in the provision of medical and hospital services, under the rubric of equality (1) and security of the person. (2)

The Charter stands, not just for constitutional governance, but for accountable constitutional governance. The Charter has introduced protections for minority and marginalized groups--protections that are of vital importance in this land, as former Prime Minister Chretien reminded us. As he put it so simply and so well, "The Charter makes everyone more comfortable as a citizen." As Justice Frank Iacobucci discussed, the Charter's protection of minorities lies at its vital heart.

In offering these protections, the Charter affirms two things: The first is much discussed, sometimes negatively--the need for tolerance of those who are different than us. The second is too often overlooked--the fundamental values that bind us to each other and ground our identity as Canadians--basic democratic rights: freedom of expression, association, liberty protections and equality.

Most importantly, the Charter has created a forum for democratic debate on a host of subjects, from basic civil liberties to timely health care. This enriches and strengthens our democracy. We fight our battles and work out our differences with laws and words--not with guns and mallets. Finally, the Charter has allowed Canada to stand tall in the world. The framers of our 1982 Constitution bargained for a constitutional change that would affirm our status as an independent nation. They got that--and much more. The got a Charter that became the envy of the world. As former Prime Minister Chretien put it, a Charter that stands as an example to the world, and a model on which other countries have built and continue to build.

The Concerns

Against the background of the Charter's successes, let me turn to the concerns. As mentioned, I divide these concerns into two categories--non-concerns and legitimate concerns.

1. What are not Concerns

   First, what are not concerns. In this category I place matters that many people think are problems, but which--upon consideration--are revealed not to be problems. I call these the Charter myths.

   The most persistent Charter myth is that the Charter has put law, order and public safety at risk, by making it harder to convict felons and softening punishment. The belief that the courts are too soft on crime is not new. In 1979, just three years before the Charter became part of the Canadian Constitution, a report prepared by the Solicitor General of Canada noted that 7 in 10 Canadians were of the view that the courts did not deal harshly enough with those convicted of crime. (3) Perhaps the Charter has merely become the new kicking horse for those with an old gripe. In fact, the statistics do not bear out the claim that the Charter has put law, order and public safety at risk. Conviction rates, viewed as a percentage of prosecutions, vary from time to time, and those fluctuations may have nothing at all to do with judges, but, for example, may be the result of a legislative change or a change in government policy. While 2003-04 rates are somewhat lower than those in 1999-2000, for example, there is no evidence that this is linked to the Charter, since the Charter was in force at both times. (4) In addition, our incarceration rates, while lower than those of the United States--as they have historically been--remain high by world standards. Canada ranked fifth out of 15 nations in a recent comparison of incarceration rates. (5)

   The second most persistent Charter myth is the notion that the Charter subordinates Parliament and the provincial legislatures to the will of the...