A Supreme Court of Canada (SCC) decision on Friday reinforced the application of the Charter of Rights and Freedoms just as Stephen Harper is doing his best to erase the whole notion from the political map. His recent assault on the Canadian Human Rights Commission is a case in point. Harper summarily closed CHRC offices in Vancouver, Toronto and Halifax. The three offices accounted for 70 per cent of all federal human rights complaints to the CHRC in 2008.
But the SCC sits at the opposite end of the rights spectrum and voted unanimously, 9-0, to increase the reach of the Charter. The court ruled that administrative tribunals — literally hundreds of quasi-judicial bodies which adjudicate cases involving a huge range of issues affecting ordinary Canadians: labour relations; the operations of school boards; human rights tribunals within other institutions — are fully capable of applying the terms of the Charter to the cases they hear.
Madam Justice Rosalie Abella, the architect of the transformation, stated for the court: “We do not have one Charter for the courts and another for administrative tribunals.”
It’s hard to over-estimate the impact of the ruling both in terms of the enhanced place of the Charter in Canadian political culture or in terms of the number of ordinary Canadian who will have much easier access to the protection of the Charter. A blow to the access was delivered by Harper early in his administration when he eliminated funding for the Court Challenges Program. The CCP provided funded for individuals challenging federal laws that were discriminatory. Without that financial assistance such challenges were virtually impossible: taking a case to the SCC can cost $250,000.
But extending the reach of the Charter means it can be effective without such an onerous burden. According to the Globe and Mail: “Examples of the sort of litigation that could be forthcoming include: psychiatric patients asking to attend religious services outside their hospital; demands by prisoners or psychiatric patients for more humane living conditions, reading materials, free contact with the news media, or special programming that is sensitive to cultural background; and applications to be released from solitary confinement.
Human rights activists and lawyers are ecstatic. Joe Arvay, a prominent lawyer in Vancouver stated: “The possibilities now are kind of endless. Whether in human rights, employment standards or a whole myriad of other areas, hundreds — or thousands — of these boards have been given a real boost.”
Abella pointed out that the courts have been moving incrementally towards this position for years and the SCC decided to consolidate those decisions: “Over two decades of jurisprudence has confirmed the practical advantages and constitutional basis for allowing Canadians to assert their Charter rights in the most accessible forum available…”
Whether or not the Justices had Harper’s attacks on the Charter in mind when deciding to consolidate and broaden its application isn’t known.
But its effect in countering the conservative government’s ruthless efforts to neutralize the Charter will be significant. The Christian right will be as displeased as human rights activists are happy. The Charter is anathema to the issues that make up the core of their beliefs and their politics. Their determination to turn back women’s equality, gay and lesbian rights, same-sex marriage and aboriginal rights now faces a formidable challenge.
Before Friday’s decision the evangelicals had a limited number of targets for their campaign. Now there are hundreds, even thousands of Charter-protecting agencies to which Harper and his Christian soldiers have no access.
Given its importance, the lack of major media coverage of the decision is puzzling.