The Supreme Court of Canada and the Charter: Democratic or Anti-Democratic? 1982 – Charter of Rights and Freedoms gives courts broad new powers If the Supreme Court finds that any provincial, territorial or federal law trespasses on rights protected in the Charter, it can declare the law unconstitutional and no longer in effect. This has made the Supreme Court of Canada very powerful. Sup. Ct. of Canada decisions have been very controversial due to the social and moral issues: R. v. Morgentaler, 1988: The court struck down Canada’s abortion law because it violated section 7 of the Charter. That section confirms everyone’s right to life, liberty and security of person. Since the abortion law restricted a woman’s ability and right to obtain an abortion legally, it was struck down. The government chose not to create a new abortion law. R. v. Daviault, 1994: The court ruled that extreme drunkenness may be a defense in rape (now sexual assault). According to that decision, convincing someone who did not know what he or shewas doing is a violation of his or her Charter rights. Carter v. Canada (Attorney General), 2015: Kay Carter and Gloria Taylor, argued that they were being discriminated against because their physical disabilities didn’t allow them to kill themselves the way able bodied peopled could. Both women had degenerative diseases and wanted the right to have a doctor help them die. The SCC ruled in their favour, finding that much had changed since the last time the SCC considered the issue. See Sue Rodriguez Case

Process of Supreme Court of Canada Appointments Eligibility & Representation To be eligible to serve on the Supreme Court, an appointee must either: i.be or have been a judge of a superior court of a province or ii.have been a barrister or advocate with at least 10 years standing at the bar of a province i.three of the judges on the Court must be appointed from Quebec ii.finally, it is convention, but not mandatory, that the remaining six positions on the Supreme Court are divided in the following manner: three from Ontario, two from Western Canada, and one from Atlantic Canada. Review by Advisory Committee In 2004, Liberal Prime Minister Paul Martin announced that nominees to the Supreme Court would be reviewed by a special parliamentary committee, that would report their findings to Parliament. This led to the establishment of an ad hoc parliamentary committee, which reviewed the 2004 nominations of justices Rosalie Abella and Louise Charron. Subsequently, a formal Advisory Committee on Supreme Court appointments was announced, which is formed each time a vacancy on the Court occurs. However, it is the PM who chooses the final nominee from the Committee's short list. Neither the Committee nor Parliament has the power to block the PM’s final decision.

Supreme Court of Canada Justices, 2012 Supreme Court Justices anniversary Chief Justice Beverley McLachlin (BC) Appointed in 1989 (Mulroney) Appointed Chief Justice in 2000 (Chretien) Rosalie Abella (Ontario) Appointed in 2004 (Martin) Marshall Rothstein (Manitoba) Appointed in 2006 (Harper) Thomas Cromwell (Nova Scotia) Appointed in 2008 (Harper) Michael Moldaver (Ontario) Appointed in 2011 (Harper) Andromache Karakatsanis (Ontario) Appointed in 2011 (Harper) Richard Wagner (Quebec) Appointed in 2012 (Harper) Clement Gascon (Quebec) Appointed in 2014 (Harper) Suzanne Cote (Quebec) Appointed in 2014 (Harper) While the Charter is no longer in its infancy, these are still early years in its life. The Charter is still a work in progress, an unfinished project. Perhaps, it will always be. Future generations will have a great role to play in shaping it. Beverley McLachlin, 2007

The Supreme Court and the Charter Our Charter allows our courts to interpret laws, laws that politicians often make. The courts have sometimes been accused of taking over the lawmaking power and putting their own personal viewpoints and values into their court judgments. Is this judicial activism? Others argue that the elected governments are avoiding controversial issues, forcing the courts to protect basic rights. Significant challenges lay ahead as the courts struggle with interpreting the Charter: What is a ‘reasonable limit?’ What is freedom of religion and expression? What constitutes an ‘unreasonable search and seizure?’ ….to name but a few…. There is no doubt that since the entrenchment of the Charter, Canadian Judges are more powerful than ever. Chief Justice Beverley McLachlin has said that the Charter of Rights and Freedoms cannot be all things to all people. She has also stated that the Court is being thrust into the ‘uncertain sea of value judgments.’

The Needs of Society or the Needs of the Individual? National Security vs. Rights and Freedoms Can democratic states protect themselves in times of crisis without sacrificing the rights and freedoms of their citizens? : War Measures Act- to arrest without charge : War Measures Act- to detain without trial 1970 FLQ Crisis: War Measures Act- to seize and dispose of private property 1988: Emergencies Act replaces War Measures Act Powers now confined to a specific geographic area, not to all of Canada Any temporary laws made under Emergencies Act would be subject to Charter 2001: Anti-Terrorism Act2001: Public Safety Act Definition of terrorism ‘Preventative arrests’ 2015: Bill C-51: Harper’s Anti-Terror Bill Lower the threshold for arrest Criminalize promotion of terrorism Allow CSIS to ‘counter-message’ or ‘disrupt activities Cabinet ministers ‘interim orders’ ‘Military Protection Zones’