National Post

April 22, 2002

Judges' values play quiet role in rulings

Luiza Chwialkowska
National Post

OTTAWA - Supreme Court judges make important constitutional decisions according to political values that are concealed from the public, a conference marking the 20th anniversary of the Charter of Rights and Freedoms was told.

Dale Gibson, an Edmonton lawyer and constitutional scholar, analyzed decisions in Charter cases from 1981 until early 2000, and concluded that judges are more likely to enforce some Charter rights over others.

Freedom of expression, freedom from self-incrimination, and other legal rights, are among the rights that have above-average success rates.

Minority language rights claims have had 100% success, he said.

He defined success as the granting of a remedy by the court, either by striking down or modifying a law in favour of the rights claimant. The average success rate across all cases was 38%.

"What's really going on is that key decisions are not based on legal doctrine but on societal values not articulated by the court," he said.

Values particularly dear to the top court include the "survival" of the legal profession manifested in the placing of "exaggerated" importance on the right to counsel, judges' salaries, and other protections for the independence of the judiciary.

The values are also changing, said Mr. Gibson, as judges display a "growing attraction" to minority rights and the freedom of association rights of unions, he said.

Equality rights had a low success rate in the first half of the period, but it has doubled to 30%, he said.

In a speech launching the conference, Beverley McLachlin, Chief Justice of Canada, made a contrary argument.

She said that Charter decisions required judges to lay bare their values through a "candid process of justification and demonstration" under Section One of the Charter. Section one requires courts to evaluate whether a law that limits a right is reasonable and "demonstrably justified in a free and democratic society."

In this way, the Charter requires judges to "get real and come clean about the values and societal interests that are the true basis for limiting an individual's rights," she said.

But Mr. Gibson argued that judges are using section one less frequently, and reaching decisions by relying "on values we are not told about."

Several other speakers acknowledged the "political" nature of the Charter, and argued that the courts seek to reflect a "social consensus" that evolves over time.

In a session devoted to practical advice for lawyers arguing Charter claims, Ritu Khullar, an Edmonton labour lawyer who has argued before the Supreme Court, said that given recent union-friendly decisions by the court, the time may may have come for lawyers and unions to "find a good case on the right to strike."

She also counselled lawyers to demonstrate to judges that a "social consensus" exists supporting their claims by enlisting a broad variety of intervening groups join their court case. The Charter is a "political document," Ms. Khullar, said. "Lawyers should think realpolitik."

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