The Canadian Charter of Rights and Freedoms (Constitution Act, 1982, “Charter”) – A Reflection on its 35th Anniversary

By: Jack Xu

As we go about our daily lives we pay scant attention to the laws of this land and the guaranteed rights and freedoms we enjoy under the Charter.  We forget the protection it offers us so we can live our lives with dignity. Critics are quick to point out that the Charter is there in name and not really available to the average person.  Others say it is abused by criminal defendants who use the procedural guarantees to escape trial and conviction.  And yet others say laws of the land should not be made by Supreme Court judges engaging in judicial activism but by legally elected representatives of the people.  All these statements have some truth to them.  However, let’s not forget that the Charter has also given women in Canada the right to a safe abortion (R v. Morgentaler ) [1988] 1 S.C.R), refugee claimants the right to a hearing (Singh v Canada [1985] 1 S.C.R. 177) and, most recently, the right to die with dignity with physician-assisted suicides (Carter v. Canada (Attorney General) [2015] 1 SCR ).

Many years ago when I worked at the Ministry of the Attorney General assisting senior Crowns prosecute cases, I realised the full import of the legal rights sections (Sections 7 – 14) of the Charter.  We used to sit with the investigating officers and determine if we could proceed with charges based on the evidence that had been collected.  The Crown would routinely not prosecute cases where the evidence was inadmissible either because it was obtained through use of an unreasonable search (Section 8), or when legal counsel had not been provided to the accused (Section 10) or when their right to remain silent had not been read out to them (Section 11).  It was the invisible hand of the Charter that offered these guarantees which do not exist in a number of societies, where the poor are disproportionately charged with crimes and convicted without due process.

I had firsthand experience on the workings of the Charter on a case involving a young man who was blind and needed an assistive device.  The said device being very expensive, OHIP had arbitrarily decided on a cut-off at age 16, making him ineligible.  His appeal of this refusal to Health Services Appeal and Review Board failed and he made a judicial review application to have the court review OHIP’s decision on the basis that it was unconstitutional in that his equality rights under the Charter had been violated (S. 15) based on age.  I was on the government’s side of the issue and had the unpleasant task of defending that position.  I was quite happy that his Charter rights prevailed and we lost at the Divisional Court.

Section 14 of the Charter sets out that “A party or witness in any proceeding who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.”  But what about in all other interactions with the government?

The Charter dealt specifically with the issue of the right to a sign language interpreter in Eldridge v. British Columbia (Attorney General).  The plaintiff challenged the decision of publicly funded medicare to not provide them sign language interpreters and requiring them to bring their own as a violation of their Section 15 right to equal treatment.  The government argued that this could mean opening the door to people who do not speak the official languages as well, thus placing an insurmountable cost burden on it.  The court brushed that argument aside implying it would deal with that issue when it actually came up and made a finding that the violation of the deaf appellants’ Charter rights was not justified.  Maybe it is time, we invoked the Charter to guarantee interpreters for all non-official language speakers accessing government services!

-Latha Sukumar, Executive Director, Toronto, Ontario, April 20, 2017