Yesterday marked the end of a three part series in the Globe and Mail on The Charter of Rights and Freedoms and its impact on Canadian Life. In particular, the Globe highligted ‘important’ cases where the Charter’s influence on society was shaped. Of the three prominent lawyers commentating, 2 cite the Morgentaler case as a major stepping stone in the evolution of the Charter as a powerful tool in contesting the ‘tyranny of the majority.’ The Morgentaler case gave Canadian women the right to choose, a right often taken for granted. The Morgentaler case is highly political and the fact that two out of three of these ‘men’ highlight it (although for different reasons) is heartening. But, one has not. So, what gives?
The article goes on to explain the recent weakening of the charter in Canadian politics:
Whether the Charter will look as robust in another 25 years is open to debate. Gusts of discontent from the ideological right have increasingly driven senior courts to take cover. In addition, the costs of litigation have sent the price of a Charter challenge soaring out of reach for ordinary litigants and many public-interest groups.
Coupled with the slow starvation of legal-aid programs and the recent demise of the federal Court Challenges Program, which financed test cases and legal interventions, the future looks bleak for Charter challengers.
“We are stuck with this Charter that looks wonderful on paper, but it’s just that — paper — unless people have the ability to enforce their rights,” said Bruce Ryder, a law professor at York University’s Osgoode Hall Law School. “Only those who drive a Cadillac get to use the Charter highway.”
Amid these grim prospects, the courts are sure to face more sensitive and politically volatile issues — including topics such as terrorism, reproductive technology, euthanasia, cloning and sophisticated electronic intrusions into privacy. The Supreme Court’s landmark 2005 Chaoulli ruling, which said that patients can seek private care if their needs are not met in a timely fashion, is also bound to spawn more cases attempting to map out the boundaries of medicare.
On another front, modifications to the appointment process for Supreme Court of Canada judges have raised serious questions about who will decide these cases. If the ideological views of judicial nominees become a dominant consideration for future governments, the Supreme Court could end up resembling its U.S. counterpart, where liberal and conservative factions are entrenched and predictable.”
Oh dear. Given all the charter has achieved for women this seems troubling to me. I don’t think that judges hold too much political clout in view of the charter; in fact, I see the Charter as the necessary antidote to the ‘supreme clout’ of the ‘prima inter pares’ (ha! equals indeed, tell that one to Steven Harper) prime minister. So what to do about all this?
The Charter is an essential tool for those marginalized in a majoritarian society. Its increasing ‘distance’ from those it was created to serve is alarming–to say the least.