Exploring Judicial Power and the Charter Using the Oakes Case a

Exploring Judicial Power and the Charter Using the Oakes Case as an Example of Judicial Review.

How does the Canadian Charter of Rights and Freedoms,^¹ change judicial power and create a wider scope of judicial review? Does this wider scope empower judges with activism or does this empower the constitution with living guardians? And if judges are living guardians of our constitution what becomes of politicians and their law making power? In explaining judicial review I will examine the extent to which these people exercise powers that affect the law. In examining these powers what can we say about the ordinary citizen and her or his relationship to the state now that the Charter is part of the supreme law of Canada? The Charter of Rights and Freedoms is a part or our constitution and section 1 of the Charter allows courts to rule on or review laws for constitutionality; that is, judges determine if a law is 'reasonable' in our democratic society. Simply put in a few words, to do this review, they interpret the meaning of the Charter.

The debate examined herein is whether judges should make laws through judicial law making power, or should politicians be the ones making the laws. In their book, Cheffins & Johnson describe the change of the character of the Canadian State from a country ruled by a legal system of parliamentary supremacy to one of judicial supremacy.^² In the beginning of the chapter on legislative authority these legal scholars contrast legislative authority with judicial review.^³ They assert that this change to judicial supremacy,^⁴happened with the passage of the Constitution Act 1982.^⁵As stated, it was s. 1 of the Charter that passed into law in 1982 as part of the Constitution Act 1982 that proscribed this change.^⁶

In 1986 with the Charter still written in fresh ink a case about narcotics reached the Supreme Court. This case, R v. Oakes (1986),^⁷ established a test for constitutionality of a law.

The Narcotics Control Act (1970),^⁸ section 8 required an accused to prove her or his innocence.^⁹ This violated section 11(d) of the Charter; namely that a person is innocent until proven guilty.^¹⁰ The Ontario Court of Appeal found the Narcotics Control Act, s. 8 unconstitutional.^¹¹ To justify the final decision, the Supreme Court produced a test for constitutionality of a law now known as the Oakes test. The Oakes test is now explained as part of the examination of judicial law making power.

The exact Oakes test starts with s.1 of the Charter and has two steps where the right or freedom violated by the law in question is tested for constitutionality. The first step of the test is to judge the objective of the law.^¹² This questions the law's purpose in a democratic society and gages whether the law has as its objective such an issue of importance that it should be allowed to violate a Charter protected right or freedom.^¹³ Then if it passes this first step, and it is found that there is a pressing need for this law to solve a problem in society, then a second step is undertaken which is “a form of proportionality test”.^¹⁴

This second step of the Oakes test has three parts.^¹⁵ First, the means of limiting the freedom or violating the right must be such that the means rationally achieve the objective of the law.^¹⁶ This is a so-called 'connection' of means and ends. If this part of the second step is passed then the test goes to the second part of the second step. The second part of this proportionality test judges whether the violation or limit is as small a violation or limit as possible to achieve the objective of the law.^¹⁷ Then finally the third part of this second step is to judge whether there is a proportionality between the limits on Charter rights and freedoms and the objective from the first step of the test.^¹⁸

In the decision of the Supreme Court, Chief Justice Dickson, writing for the majority in Oakes states the effect of the Charter thusly, “In Canada, we have tempered parliamentary supremacy by entrenching important rights and freedoms in the Constitution.”^¹⁹

The judges in Oakes ruled the Narcotics Control Act s. 8 unconstitutional. This law, section 8, failed the first part of the second step.^²⁰ This is because the common law has a presumption of innocence and that is what s. 11(d) is based on. This common law presumption was violated beyond reason by the Narcotics Control Act s. 8 according to the judges.^²¹ The violation of Charter rights and freedoms in this case was not reasonable.^²² This is a clear example of judges guarding Charter rights and disagreeing with politicians.

As an ordinary citizen I would not have passed the Narcotics Control Act on the first step. This means the judges ruled very differently about society's problems than I would have. I see the limits on freedoms of the drug laws as unreasonable when large numbers of Canadians have broken this law. Although exact numbers are hard to obtain, as with other facts about the Canadian population, many Canadians have tried marijuana or use it now.^²³ Should all these Canadians be put in jail? On the other hand, I also think differently than the politicians who wrote the law. Perhaps with Bill C-38, new laws about marijuana will be written soon.

Cheffins and Johnson state that the courts will change to accept their new duties to guard the Charter rights and freedoms.^²⁴ Now that judges have a large set of rules in the constitution (namely the Charter rules) they can broaden their constitutional rulings.^²⁵ Before 1982 judges only ruled on the constitutionality of a law on what is called Federalism grounds.^²⁶ The Constitution Act 1867 had only allowed federalism grounds.^²⁷ Briefly stated, judges ruled only on jurisdictional issues between the law making powers of the provinces versus the federal government. Now with the Charter of Rights and Freedoms a broader set of reasons became available to rule on the constitutionality of laws. Most of these rights and freedoms are neither new rights nor different from rights and freedoms we have had in the past. The difference now is that these rights and freedoms are now protected by the constitution.^²⁸ As the constitution is the supreme law of the country above all other laws we have theoretically given more importance to Charter rights and freedoms,^²⁹ and given these a stronger legal position. The supreme law of Canada now legally protects these rights and freedoms. Who makes sure this protection exists? It is judges who now use the Charter to protect these rights and freedoms. This is called judicial review power.

In the April 1999 issue of Policy Options, a number of scholars, namely Deans of law schools, political science professors, a Judge and others debate the issue of judicial review as it is placed as a power against the legislature's power. In this series of articles these writers take a position on who should make the law.

Justice Bertha Wilson in her article,^³⁰ argues that judges did not ask to guard the Charter, but rather politicians decided that judges would do this.^³¹ She contends that judges are the right choice for guardians of the Charter.^³²

Also on the side of the judges, Peter W. Hogg and Allison A. Thornton argue in their article,^³³ that judges do not have the final word on law making.^³⁴ They content once judges make a ruling on a law's constitutionality, legislatures then “talk” about the right and freedoms affected.^³⁵ The legislators then write new laws that also reflect the “talk” of the judges and courts.^³⁶ These two legal scholars argue that judges are doing a good job as Charter guardians and this is the right way to change law in a democracy.^³⁷

However, others who may be more conservative in political outlook argue that the opposite. For instance, F.L Morton,^³⁸ an Albertan and political science professor, argues against the Hogg-Thornton thesis.^³⁹ He says that legislators are not free to “talk” about rights and freedoms when a court rules on these.^⁴⁰ He argues courts favour minority views, whenever they decide the law on contentious moral issues.^⁴¹ Furthermore, he states that judges when they do the “talking”, force politicians to either have no laws created to replace unconstitutional laws,^⁴² or to create laws that have been directly fashioned by the courts.^⁴³ This is his idea of courts ordering that laws be made by the legislators.^⁴⁴ He says ordering a law is not a conversation about laws.^⁴⁵ Generally he believes that courts limit legislators and that this condition imperils our democracy.^⁴⁶ His reason for favouring politicians in a democratic society is that politicians are accountable whereas judges are neither elected nor accountable.

Here I think he does not consider that there is also a type of case that comes before a Supreme Court that the court can not refuse to hear. Section 53 of the Supreme Court Act^⁴⁷allows these so called reference questions that the government can send to the court.^⁴⁸ This legally binding rule might be considered to be politicians ordering judges to make law. So Morton's point is no longer valid in a one-sided sense of only judges talking and politicians being silenced. The opposite can also occur.

Rainer Knopff, another Western political science professor, continues along the lines of Morton, arguing that the solutions to rights problems that courts offer are too extreme and are not good compromises.^⁴⁹ Again he argues like Morton that extremists win in morally problematic cases.^⁵⁰ If courts make solutions for moral problems, the resulting laws are not a moderation of values but extremes.^⁵¹ Knopff argues courts can not pretend to be neutral.^⁵² He believes that politicians with their law making ability can make good compromises for moral issues.^⁵³ Furthermore, he like Morton argues politicians represent majorities and thus make healthier decisions on moral issues.

Another writer, Lorraine Weinrib, argues against Knopff and Morton by portraying their disagreement with judge made law in political spectrum terms.^⁵⁴ Weinrib argues that these scholars who are anti-judge made law are only anti-judge when the judges' decisions are against conservative social values.^⁵⁵ Weinrib is of the opinion that conservative judges are more activist in their judgments than strict contextual judges.^⁵⁶ Judicial activism is a term used to refer to law making power by judges where the judge is active in bringing social policy forward rather than strictly interpreting the laws as written.^⁵⁷ Certainly Justice Bertha Wilson says there is a fallacy of separating policy and statutory textual interpretation.^⁵⁸

I would not make any criminal laws about narcotics and would forward this non-law making for rights and freedoms under criminal law as a policy. This is how I would be a politician in terms of drug law. Therefore, I disagree with both judges (as in Oakes) and politicians as might be found in our government today. It can also be argued that for any law some ordinary citizen will find the law unjust whether the law is judge made, or politician made law.^⁵⁹

Laws change all the time. Some say the Charter is an empty document, but I disagree. Most of the rights and freedoms in our Charter have been with us for generations. I think the Oakes case points to the probable filling of this so-called empty Charter with common law practices. Judges are the best to guard the common law as judges define common law as a legal system, and they are also the best choice of changing laws to suit new situations.^⁶⁰

I think where the Charter is new law; there are good possibilities. The courts can deal with the new issues perhaps for the first time such as ruling on gay marriage rights. There are two areas of law: first the already established rights and freedoms that courts can protect with more power now, and second, the new areas where extreme views will change the laws at first. However, both judges and politicians, far removed from the ordinary realities of survival in Canada's lower classes, will continue to make laws that someone in our country will always find disagreeable and extreme. I believe ordinary citizens should be pushing for new laws and new rights and freedoms, but also following through with this pressure until Charter rights and freedoms are as accepted as criminal law rights and freedoms and other important common law practices.

Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11.

Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5.

Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11.

Bill C-38, An Act to amend the Contraventions Act and the Controlled Drugs and Substances Act, 2d Sess., 37^th Parl., 2004.

Cheffins, Ronald I. & Johnson, Patricia A. The Revised Canadian Constitution: Politics as Law (Toronto: McGraw Hill, 1986).

Hogg, Peter W. Constitutional Law of Canada, 2003 student ed. (Scarborough, Ont.: Thomson Carswell, 2003).

Hogg Peter W. & Thornton, Allison A. "The charter dialogue between courts and legislatures" Policy Options (April 1999) 19.

Jaekl, Christian. Introduction to Public Law (Ottawa, Ont.: Carleton University, 2004) (lecture).

Knopff, Rainer. "Courts don't make good compromises" Policy Options (April 1999) 31.

Weinrib, Lorraine E. “The activist constitution” Policy Options (April 1999) 27.

1Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11.

2Ronald I. Cheffins, & Patricia A. Johnson, The Revised Canadian Constitution: Politics as Law (Toronto: McGraw Hill, 1986).

6Supra note 2 (“...since the passage of the Charter of Rights, a new limitation has been imposed on the authority of government institutions. Once again it is the responsibility of the judiciary to determine when governments or their agents overstep the boundaries of legitimate authority.” at 4).

10Canadian Charter of Rights and Freedoms, s. 11(d), Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, (s. 11. Any person charged with an offence has the right... d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; ).

23 Bill C-38, An Act to amend the Contraventions Act and the Controlled Drugs and Substances Act, 2d Sess., 37^th Parl., 2004, Legislative Summary,

(“B. Facts and Figures

Some of the following statistics contradict others from different sources. These inconsistencies underline the difficulty in obtaining hard data on this topic.

1. Consumption

100,000 Canadians use marihuana on a daily basis. (Source: Minister of Justice)

325,000 Canadians use marihuana on a daily basis. (Source: report of the Senate Special Committee on Illegal Drugs”, at B.1).

24Supra note 2 “But even with a judiciary conditioned to legislative dominance there is no doubt that judges will still inevitably be pushed to apply the Charter quite frequently to strike down either the activity of government authorities or the actual provisions of statutes.” at 4.

27Ibid. See e.g. Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 91 & s. 92, reprinted in R.S.C. 1985, App. II, No. 5. See especially supra note 25 c. 15.

33Peter W. Hogg, & Allison A. Thornton, "The charter dialogue between courts and legislatures" Policy Options (April 1999) 19.