The Canadian Charter. A Time for Bold Spirits,
Not Timorous Souls
McGill Law Journal Lecture
Conf6rence de la Revue de droit de McGill
The Honourable Fred Kaufman*
This is a partial text of the Second Annual
McGill Law Journal Lecture, which was given
by Mr Justice Kaufman (who was the second
Editor-in-Chief of the McGill Law Journal)
at the Faculty of Law, McGill University on
30 October 1985. The author points to the
need for bold and original interpretations of
the Canadian Charter of Rights and Free-
doms by judges and lawyers alike. In partic-
ular, he calls for a reassessment of the value
and relevance of the Canadian Bill ofRights.
Voici une partie de l’expos6 prononck par
Monsieur le juge Kaufman (qui filt le deuxirme
r&lacteuren chefde la Revue) lors de la seconde
Conference annuelle de ]a Revue de droit de
McGill qui eut lieu A la Facult6 de droit de
l’Universit6 McGill le 30 octobre 1985. Dans
son texte, l’auteur insiste sur la n6cessit6, tant
pour les avocats que pour les juges, d’inter-
prater la Charte canadienne des droits et libertls
de faron audacieuse et originale. Plus parti-
culi~rement, l’auteur tient A ce que soit
r6valu6 la pertinence de la DMclaration cana-
dienne des droits.
*Of the Quebec Court of Appeal. The author acknowledges with gratitude the assistance of
his wife, Donna Kaufman, B.C.L., LL.M., now of the Bar of Quebec, in the research for this
paper.
@McGill Law Journal 1986
Revue de droit de McGill
1986]
NOTES
I take as my text part of a paragraph from the dissent of Lord Justice
Denning (as he then was) in Candler v. Crane, Christmas & Co.:
This argument about the novelty of the action does not appeal to me in the
least. It has been put forward in all the great cases which have been milestones
of progress in our law, and it has always, or nearly always, been rejected. If
you read the great cases of Ashby v. White, Pasley v. Freeman and Donoghue
v. Stevenson you will find that in each of them the judges were divided in
opinion. On the one side there were the timorous souls who were fearful of
allowing a new cause of action. On the other side there were the bold spirits
who were ready to allow it if justice so required. It was fortunate for the
common law that the progressive view prevailed.’
These words were written by Lord Denning in 1951, but the message
is still valid today. The Canadian Charter ofRights and Freedoms2 is entrenched
in the new Constitution; it is part of the “supreme law of Canada”. 3 It was,
as noted at the time by an observer, “apparently supported by the Canadian
people generally and expectations [were] … created”. 4
But, as Professor Lyon warned, “if judges fail to perceive the Charter
as a new mandate”,5 the will of Parliament –
and with it the expectations
of the Canadian people – will be frustrated, as happened with the Canadian
Bill ofRights, 6 a statute much acclaimed when it was first enacted, but soon
dismissed as ineffective.
This “quasi-constitutional document” (as Mr Justice Beetz came to call
the Bill of Rights more than twenty years later)7 was preceded by a ringing
preamble and a fine “Recognition and Declaration of Rights and Freedoms”.
Let me remind you of the words.
First the Preamble:
The Parliament of Canada, affirming that the Canadian Nation is founded
upon principles that acknowledge the supremacy of God, the dignity and worth
‘(1951), [1951] 2 K.B. 164 at 178, [1951] 1 All E.R. 426 [references omitted].
2Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982,
c. 11 [hereinafter the Charter].
31bid., s. 52.
4N. Lyon, “The Teleological Mandate of the Fundamental Freedoms Guarantee: What to
Do with Vague but Meaningful Generalities” (1982) 4 Sup. Ct L. Rev. 57 at 58.
‘Ibid.
6 Part I of An Act for the Recognition and Protection of Human Rights and Fundamental
Freedoms, S.C. 1960, c. 44, reprinted in R.S.C. 1970, App. m [hereinafter the Bill of Rights].
7Singh v. Minister of Employment and Immigration (1985), [1985] 1 S.C.R. 177 at 224, (sub
nom. Re Singh and Minister ofEmployment and Immigration) 17 D.L.R. (4th) 422 [hereinafter
Singh cited to S.C.R.].
REVUE DE DROIT DE McGILL
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of the human person and the position of the family in a society of free men
and free institutions;
Affirming also that men and institutions remain free only when freedom
is founded upon respect for moral and spiritual values and the rule of law;
And being desirous of enshrining these principles and the human rights
and fundamental freedoms derived from them, in a Bill of Rights which shall
reflect the respect of Parliament for its constitutional authority and which shall
ensure the protection of these rights and freedoms in Canada;
Therefore Her Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows …
Now for Part 1:
It is hereby recognized and declared that in Canada there have existed
and shall continue to exist without discrimination by reason of race, national
origin, colour, religion or sex, the following human rights and fundamental
freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoy-
ment of property, and the right not to be deprived thereof except by due
process of law;
(b) the right of the individual to equality before the law and the protection of
the law;
(c) freedom of religion;
(d) freedom of speech;
(e) freedom of assembly and association; and
(f) freedom of the press.
The right words were there but, with all-too-few exceptions, notably R.
v. Drybones,8 the Bill of Rights was cautiously (some may say timidly) applied
by the courts. The result was that, after the first few years, counsel rarely
bothered to invoke the Bill: to do so seemed to be a waste of time and effort.
Examine the record and you will see what I mean: A.G. Canada v.
Lavell,9 about the rights (or rather loss of rights) of female Indian band
members who marry non-Indians; Hogan v. R.10 and the admissibility of
evidence obtained in violation of rights guaranteed by the Bill R. v. Chow,I
which held that violation of an accused’s right to counsel was merely a factor
to be considered in deciding whether to admit a confession; Duke v. R.,12
8(1969), [1970] S.C.R. 282, 9 D.L.R. (3d) 473. The Bill ofRights also proved useful in some
prison and parole-related cases.
9(1973), [1974] S.C.R. 1349, 38 D.L.R. (3d) 481 [hereinafter Lavell cited to S.C.R.].
10(1974), [1975] 2 S.C.R. 579, 48 D.L.R. (3d) 427.
“(1978), 43 C.C.C. (2d) 215 (B.C.C.A.).
12(1972), [1972] S.C.R. 917, 28 D.L.R. (3d) 129.
1986]
NOTES
about the Crown’s obligation (or, once again, the lack of obligation) to pro-
vide information to an accused; R. v. Ewing and Kearney 3 and the absence
of counsel at trial. I could go on, but the above examples suffice: the approach
was cautious in the extreme, innovation was not encouraged and the overall
result was highly disappointing. It was, in short, a clear frustration of the
will of Parliament as set out in the preamble.
Why did this happen? Professor Lyon suggests that it was, in part at
least, owing to “[t]he almost universal belief among Canadian lawyers that
the common law is best for securing rights”,14 coupled “with a tenacious
commitment to the supremacy of Parliament”.’ 5
I interject to say that not everyone felt so constrained, and I quote from
Abbott J.’s dissent in Lavell:
In my view the Canadian Bill of Rights has substantially affected the
doctrine of the supremacy of Parliament. Like any other statute it can of course
be repealed or amended, or a particular law declared to be applicable not-
withstanding the provisions of the Bill. In form the supremacy of Parliament
is maintained but in practice I think that it has been substantially curtailed.
In my opinion that result is undesirable, but that is a matter for consideration
by Parliament not the courts.16
It was, however, more than “a tenacious commitment to the supremacy
of Parliament” which accounted for this early conservatism, and I suggest
that suspicion and fear were partly to blame: suspicion of an act of Parlia-
ment which told us how to construe and apply other acts, and fear that
chaos might result from bold and progressive interpretations. Look at the
United States, it was said. The hands of the police are tied; the courts are
clogged with pre-trial motions of every conceivable kind; the criminals go
free.
These are powerful arguments, and if you add to that the fact that the
Bill of Rights was but another statute – not constitutionally entrenched –
(N.S.) 227 (B.C.C.A.).
13(1974), [1974] 5 W.W.R. 232, (sub nom. Re Ewing and Kearney and the Queen) 29 C.R.
‘4See, e.g., R. v. Burnshine(1974), [1975] 1 S.C.R. 693 at 702, 44 D.L.R. (3d) 584 [hereinafter
Burnshine cited to S.C.R.], where Martland J. wrote as follows:
I am not prepared to accept the respondents submission as to the meaning of
the phrase “equality before the law” in s.l(b) of the Bill of Rights. Section 1 of the
Bill declared that six defined human rights and freedoms “have existed” and that
they should “continue to exist”. All of them had existed and were protected under
the common law. The Bill did not purport to define new rights and freedoms. What
it did was to declare their existence in a statute, and further by s.2, to protect them
from infringement by any federal statute.
‘5Lyon, supra, note 4 at 58.
16Lavell, supra, note 9 at 1374.
McGILL LAW JOURNAL
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one can begin to understand (though not, perhaps, condone) the reticence
which marked these Bill of Rights decisions.
Happily, this has now changed, and here I still speak of the Bill of
Rights it has been re-examined –
and we find that it is good!
Let me give you examples. In R. v. Landry,17 the Quebec Court of
Appeal found that the reverse onus provisions of the Narcotic ControlAct’8
contravened the Bill of Rights and that they were, therefore, inoperative.
You may say this is not new. After all, did the Ontario Court of Appeal not
already say so in R. v. Oakes?’9 Indeed it had, but that was under the Charter,
and Landry was a pre-Charter case.
Let me read to you what was said by Mr Justice Malouf in Landr.
In Oakes, the court came to the conclusion … that the language used in
s. 2() of the Bill of Rights is “identical to that contained in s. 11 (d) of the
Charter, save for the substitution of ‘an offence’ in the Charter for the words
‘a criminal offence’ in s. 2()”. I, too, hold the view that said section of the Bill
ofRights is in essence identical to that contained in said section of the Charter.
The arguments put forward by the court in Oakes apply as well to the present
case.
Both the Bill ofRights and the Charter recognize the right of an accused to be
presumed innocent until proven guilty according to law. I cannot accept that
such a basic and fundamental principle can be set aside by such a reverse onus
provision.
I realize that s. 2() of the Bill of Rights has not previously been invoked
against the validity of s.8 of the Narcotic ControlAct despite the passage of 13
years since it became law. Any argument based on this fact is not, in my view,
valid. Since, as stated above, the provisions contained in s. 2() of the Bill of
Rights are essentially the same as the provisions contained in s. 1 l(d) of the
Charter, the reasons given above apply to both.
I am therefore of the opinion that s.8 of the Narcotic Control Act con-
travenes s. 2() of the Bill of Rights and is therefore constitutionally invalid. 20
The point I make is this: had it not been for the advent of the Charter,
I doubt, first of all, whether counsel would have invoked the Bill of Rights,
secondly, even if counsel had done so, the Court may not have been moved
to act. But our perception has changed, and right there you have proof that
17(1983), [1983] C.A. 408, 2 D.L.R. (4th) 518 [hereinafter Landry cited to D.L.R.].
8R.S.C. 1970, c. N-1. S. 8 of this Act provides that where possession of a narcotic has been
established, the accused “shall be given an opportunity of establishing that he was not in
possession of the narcotic for the purpose of trafficking”. Should he fail to do so, he will be
convicted of the more serious offence of having had a narcotic in his possession for the purpose
of trafficking, rather than of simple possession.
19(1983), 40 O.R. (2d) 643, 145 D.L.R. (3d) 123 (C.A.), aff’d (1986), 65 N.R. 87 (S.C.C.).
20Landry, supra, note 17 at 523-25.
1986]
NOTES
the Charter, with all its imperfections, has brought about a new and refresh-
ing redirection of thought. And that is only the beginning.
Let me give you a second example, this one from more Olympian
heights. In Singh,2 1 Mr Justice Beetz (with the concurrence of two of his
colleagues) held that, even with the Charter securely in place, the Canadian
Bill of Rights still retains its force and effect, and that the Appellant’s rights
had been violated by the
–
authorities. This paragraph states, in part, that “no law of Canada shall be
construed or applied so as to deprive a person of the right to a fair hearing
in accordance with the principles of fundamental justice for the determi-
nation of his rights and obligations”.
to be specific, paragraph 2(e) of the Bill –
Let me quote from the reasons of Beetz J.:
Section 26 of the Canadian Charter of Rights and Freedoms should be
kept in mind. It provides:
26. The guarantee in this Charter of certain rights and freedoms shall not
be construed as denying the existence of any other rights or freedoms that
exist in Canada.
Thus, the Canadian Bill of Rights retains all its force and effect, together
with the various provincial charters of rights. Because these constitutional or
quasi-constitutional instruments are drafted differently, they are susceptible of
producing cumulative effects for the better protection of rights and freedoms.
But this beneficial result will be lost if these instruments fall into neglect. It is
particularly so where they contain provisions not to be found in the Canadian
Charter of Rights and Freedoms and almost tailor-made for certain factual
situations such as those in the cases at bar.22
It is interesting to note that this argument was not advanced by counsel
when the appeal was first argued on 30 April and 1 May 1984. However,
on 7 December of that year, the deputy registrar wrote to counsel to inform
them that “the members of the Court would like to have their submissions
in writing on the application of the Canadian Bill of Rights.”23 Counsel, of
course, complied, and three of the six judges who took part in the judgment
accepted the argument. The other three judges, led by Wilson J., preferred
to rely on the Charter, but even here we find a significant passage concerning
the potential strength of the Canadian Bill of Rights, and I quote from
Madam Justice Wilson’s reasons for judgment:
The creation of a dichotomy between privileges and rights played a sig-
nificant role in narrowing the scope of the application of the Canadian Bill of
21Singh, supra, note 7.
22Ibid. at 224.
23Ibid. at 223.
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Rights, as is apparent from the judgment of Martland J. in Mitchell v. The
Queen, [where he] said:
The appellant also relies upon s.2(e) of the Bill ofRights, which provides
that no law of Canada shall be construed or applied so as to deprive a person
of the right to a fair hearing in accordance with the principles of fundamental
justice for the determination of his rights and obligations. In the McCaud
case Spence J., whose view was adopted unanimously on appeal, held that
the provisions of s.2(e) do not apply to the question of the revocation of
parole under the provisions of the Parole Act.
The appellant had no right to parole. He was granted parole as a matter
of discretion by the Parole Board. He had no right to remain on parole. His
parole was subject to revocation at the absolute discretion of the Board.
I do not think this kind of analysis is acceptable in relation to the Charter. It
seems to me rather that the recent adoption of the Charter by Parliament and
nine of the ten provinces as part of the Canadian constitutionalframework has
sent a clear message to the courts that the restrictive attitude which at times
characterized their approach to the Canadian Bill of Rights ought to be re-
examined. I am accordingly of the view that the approach taken by Laskin
C.J. dissenting in Mitchell is to be preferred to that of the majority as we
examine the question whether the Charter has any application to the adjudi-
cation of rights granted to an individual by statute. 24
Post-hearing requests by a court for additional arguments are, of course,
rare, but some of the judges of the Supreme Court of Canada clearly felt
that there was life yet in the Bill of Rights. This shows an open, indeed
activist, mind and, with respect, I applaud this turn of events.
These recent developments, more than ever before, demonstrate that
counsel must be bold and diligent and imaginative, no matter what the
issue. The Bill of Rights, as well as the Charter, is here for all of us to use,
and we should not lose sight of the existence of either. These are not merely
instruments (as is sometimes said) to help the criminals escape the conse-
quences of their evil acts. Rather, they exist to protect the rights and free-
doms of all who are in Canada – yours and mine –
and certainly those
of your clients.
Of course, not every case calls for an argument based on the Bill of
Rights or the Charter. As Mr Justice Zuber said in R. v. Altseimer25 (an
early Chartercase), “bizarre and colourful arguments” will lead to “[e]xtravagant
interpretations” which, in the end, “can only trivialize and diminish respect
for the Charter”. But this does not mean that counsel should be reluctant
or both. The reasons of Beetz J. provide
to invoke the Bill or the Charter –
the argument that we need the Bill, the Charter and the provincial charters,
and that they complement each other. This, I suggest, is welcome, and if
24Singh, supra, note 7 at 209 [emphasis added and footnotes omitted].
25(1982), 38 O.R. (2d) 783 at 788, 142 D.L.R. (3d) 246 (C.A.).
19861
NOTES
we apply these safeguards with the broad brush which Parliament provided
in the Bils preamble, the human rights and fundamental freedoms of all
who find themselves in Canada will be secure.
I spoke of the preamble to the Bill. What of the Charter? Here, there
is no ringing preamble: “Whereas Canada is founded on principles that
recognize the supremacy of God and the rule of law”. Not only is this not
particularly quotable, but some will not agree with the first proposition,
while others –
notably laymen – won’t understand the second. Indeed,
with all due respect, I think you and I could have done better. But there it
is, followed at once by the “subject only” limitation. 26 I have no quarrel
with this clause – without it we might not have had a Charter at all –
but the single “Whereas” of the Charter, read together with section 1, might
well have brought about a very cautious approach to human rights and
freedoms. Fortunately, this was not the case, and I give you, by way of
example, the judgment ofDesch~nes C.J. in QuebecAssociation ofProtestant
School Boards v. A.G. Quebec,27 which was decided in 1982. In His Lord-
ship’s view, the change brought about by the Charter was fundamental, and
this new spirit must not be stifled by the courts. He quoted a celebrated
passage from Lord Wilberforce in Minister ofHomeAffairs v. Fisher,28 which
dealt with the new Constitution of Bermuda. This document, Lord Wil-
berforce wrote, calls “for a generous interpretation, avoiding what has been
called ‘the austerity of tabulated legalism,’ suitable to give to individuals
the full measure of the fundamental rights and freedoms referred to.”‘ 29
So, too, with the Charter. Nothing could frustrate the expectations of
the Canadian people more quickly than an “austerity of tabulated legalism”,
to use Lord Wilberforce’s phrase. It is, I suggest, a time for Lord Denning’s
“bold spirits” –
a time to innovate, when needed, a time to cast aside the
restraints of the past, a time to look ahead and state clearly that this is what
we want.
These proposals are not as shocking as they may sound to some. The
Charter itself, I suggest, imposes them, and I refer in particular to section
24.
26S. 1 reads as follows: “The Canadian Charter ofRights and Freedoms guarantees the rights
and freedoms set out in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.”
27(1982), [1982] C.S. 673, 140 D.L.R. (3d) 33, rev’d (1983), [1983] C.A. 77, aff’d (1984),
[1984] 2 S.C.R. 66.
28(1979), [1980] A.C. 319, [1979] 3 All E.R. 21 (PC.) [hereinafter Fisher cited to A.C.].
29Ibid. at 328.
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This section deals with the enforcement of guaranteed rights and free-
doms, and it provides, in subsection (1), that “a court of competent juris-
diction” may order, upon application, “such remedy as [it] considers appropriate
and just in the circumstances.” The section also provides, in subsection (2),
that where evidence was obtained “in a manner that infringed or denied
any rights or freedoms guaranteed by [the] Charter, the evidence shall be
excluded” if it is established that, “having regard to all the circumstances,
the admission of it in the proceedings would bring the administration of
justice into disrepute.”
The very wording of this section –
“such remedy as the court considers
appropriate and just” –
is, of course, a call for judicial ingenuity or, if you
will, an open door to activism. Indeed, some might say, and not without
reason, that Parliament, in giving this power to the judges, virtually opened
the door to the promulgation of laws by the judiciary.
Perhaps, in 1985, this idea doesn’t shock us –
at least not as much as
it did in the early part of this century, when Mr Justice Cardozo, according
to Grant Gilmore, made his “hesitant confession [in his Nature of the Judi-
cial Process] that judges were, on rare occasions, more than simple auto-
mata, that they made law instead of declaring it”.30 Yet, this pronouncement,
again in the words of Professor Gilmore, “was widely regarded as a legal
version of hard-core pornography”. 31
We have come a long way since 1920 and now, with the blessing –
if
not, indeed, the command – of Parliament we, the judges, not only can
declare what the law is, but also we can search for remedies which are
appropriate and just when that law is not respected, subject only to con-
science, and ultimately the Supreme Court of Canada.
I do not stand alone on this point. Professor Hogg, writing in 1982,
said this about subsection 24(1):
Conceivably, totally new remedies could be invented. In any event, a court of
general equitable jurisdiction can tailor the injunction to meet new situations,
as is illustrated by the development since 1954 of the civil rights injunction
to enforce the provisions of the Bill of Rights in the United States. 32
Today, the first of the Charter cases have been decided by the Supreme
Court of Canada. Many more have been heard on trial and appellate levels.
30G. Gilmore, The Ages ofAmerican Law (New Haven: Yale University Press, 1977) at 77.
31Ibid.
32pw. Hogg, Canada Act 1982 Annotated (Toronto: Carswell, 1982) at 65.
1986]
NOTES
The remedies have varied, from monetary compensation 33 to a stay of pro-
ceedings in a criminal trial. 34
As I wrote in the latter case, “[t]he new Canadian Charter of Rights
and Freedoms is a bold document which, to be effective, deserves a bold
approach by the courts.” 35
I stand by this statement. As Chief Justice Dickson said on 18 April
1985, at the Call to the Bar Ceremony at Osgoode Hall, the Charter is “a
glorious chapter in the constitutional development of [this] nation”. It opens
up “exciting new frontiers”, and while, in the past, the “zeal of the student
was to obtain proficiency in the rules of law and maturity in the art of
penetrating all the intricacies of legal doctrine”, today “we must focus
increasingly on gaining a real understanding of the ends to which those skills
[must] be directed”. 36
And the Chief Justice concluded as follows:
The laws primary function is not to restrict or prohibit but to safeguard and
protect persons, their privacies and freedoms. The social responsibilities of the
profession must be appreciated and, equally important, the consequences of
the failure of the profession to bear its social responsibilities. Our preoccupation
must be not only with the mechanics of the law but with the great principles
of justice and freedom and humanity which give it meaning and purpose. 37
Some time ago, Professor Ackerman concluded a dissertation on the
state of the law in the United States by saying that “[w]hile the future of
America depends on the American people, the future of American law depends,
in a special way, on the way American lawyers interpret their calling”. 38
If I may paraphrase these words, the future of Canada depends on the
Canadian people, but the future of Canadian law depends, in a special way,
on the way Canadian lawyers –
interpret their calling. Be
bold, be forward, be inventive! In short, be lawyers as you and I understand
the term.
and judges –
33Crossman v. R. (1984), [1984] 1 EC. 681, 12 C.C.C. (3d) 547 (T.D.), where Walsh J. awarded
$500 (in an action for damages) for violation of the plaintiff’s Charter rights (in this case his
right not to be questioned by the police before the arrival of counsel).
34R. v. Vermette (No. 4) (1984), [1984] C.A. 466, 16 C.C.C. (3d) 532 [hereinafter cited to
C.A.]. In this case, the Quebec Court of Appeal (3:2) confirmed the trial judge’s order to quash
an indictment when the Premier of Quebec, in answer to a question in the National Assembly,
made highly disparaging remarks about a key witness and, indirectly, about the accused.
35Ibid. at 470.
36B. Dickson, “Remarks” (Address to the Call to the Bar Ceremony, Osgoode Hall, Toronto,
37Ibid.
38B.A. Ackerman, Reconstructing American Law (Cambridge, Mass.: Harvard University
18 April 1985) [unpublished].
Press, 1984) at 110.
