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5 Legal Rights
About 90 per cent of all Charter arguments raised in reported cases across all Canadian courts deal with one of the legal rights sections — sections 7-14.1 In the Supreme Court of Canada, about two-thirds of the Charter cases heard concern legal rights.2 The heavy use of the legal rights sections by litigants is partly a result of the familiarity lawyers have with legal rights in that most of these rights are simply codifications of common-law principles. As well, the legal rights sections give lawyers the opportunity to raise additional arguments regarding cases that would have gone to court anyway because of the criminal process. In contrast, many of the cases litigated under sections of the Charter dealing with the fundamental freedoms, democratic rights, mobility rights, equality rights and language rights are cases mounted specifically to raise a Charter challenge.
When the Charter was in its infancy, observers like Peter Russell predicted that cases based on the legal rights sections were likely to produce the least controversial decisions because judges would simply continue to apply the same principles with which they were familiar under the common law.3 However, some legal rights decisions have had a surprising impact either on the criminal justice system or on government policies. This is mainly because of two factors: (a) the inclusion of some "new" legal rights in the Charter as well as a broader description of some older ones (see chapter 1), and (b) the fact that the Charter, as part of the constitution, invites judges to expand the traditional common-law protections. This chapter will consider fourteen of the Supreme Court's most prominent legal rights decisions.
Unreasonable Search and Seizure: Hunter v. Southam4
On April 19, 1982, two days after the Charter became law, officers from the Combines Investigation Branch appeared at the Edmonton Journal. They demanded to search the newspaper's offices, and they had with them a search certificate granted by the Restrictive Trade Practices Commission, the body responsible for enforcing the federal Combines Investigation Act. The certificate read as follows:
You are hereby authorized to enter upon the premises hereinafter mentioned, on which I believe there may be evidence relevant to this inquiry, and examine thereon and copy ... any other book, paper, record or other document that in your opinion may afford such evidence. The premises referred to herein are those occupied by or on behalf of Southam Inc., 10006-101 Street, Edmonton, Alberta, and elsewhere in Canada.
The search went ahead. Southam Inc., owner of the Journal, decided to test the Charter by requesting a court order to strike down the section of the Combines Investigation Act that authorizes such searches. Southam claimed that the act violated section 8 of the Charter, which declares that everyone has a right to be secure against unreasonable search or seizure. The Supreme Court of Canada decision was handed down in September 1984.
In order to appreciate the significance of the decision, it is useful to keep in mind that in the decade immediately prior to this case there was an enormous expansion of newspaper chains like Southam and Thomson.5 This change began to generate public concern, which came to a head in August 1980. Both Thomson and Southam had owned a newspaper each in Ottawa and Winnipeg. One newspaper from each chain closed in each city, leaving Southam with a virtual monopoly in Ottawa, and Thomson in a similar position in Winnipeg. The public outcry which resulted, led to the creation of the Kent Royal Commission on Newspapers, which reported in 1981. The commission hinted that the two newspaper chains may have breached the Combines Investigation Act in closing the two newspapers. The subsequent investigation by the Combines Branch led to the search of the Edmonton Journal offices.
Chief Justice Dickson wrote the unanimous opinion for the full Court. He pointed out that in order for the Court to give legal definitions to terms like "unreasonable search or seizure," it could not rely either on a dictionary or on the rules of construction that had been developed for non-Charter cases. Neither approach would lead to conclusive results. Dickson declared that the Court would take a "purposive" approach towards resolving such issues, meaning that the Court would define the various provisions of the Charter according to their historical and political purposes. Dickson quoted Viscount Sankey's decision in the 1930 "persons" cases (see chapter 1), in which Sankey described the Canadian constitution as "a living tree capable of growth and expansion within its natural limits." Dickson claimed that the Court needed to give the Charter a broad interpretation, rather than to "read provisions of the Constitution like a last will and testament lest it become one."
Dickson said that the purpose of section 8 was to protect a right to privacy. He pointed out how common-law judges had for centuries protected individual privacy from illegal encroachment by the state, and he mentioned specifically the judgment of Lord Camden in Entick v. Carrington6 (see chapter 1). He said that a reasonable search would be one in which "the interests of the state in [intruding] come to prevail over the interests of the individual in resisting [state intrusions]." Building on the common law relating to trespass, Dickson defined a "reasonable search" as one which is (a) authorized by a statute (this principle protects the rule of law) and (b) conducted after a search warrant is issued, unless the need for a search is so pressing that it would be unrealistic to obtain a warrant. The search warrant can be issued only by an impartial party (someone capable of "acting judicially," though not necessarily a judge), and that party must be satisfied that there are probable grounds to believe that an offence has been committed and that the evidence is located in the specific place to be searched.
The search procedures utilized by the Restrictive Trade Practices Commission did not pass this test. First, the search warrant was not issued by an independent party. The members of the commission, who could issue search warrants, also had investigative powers. Therefore, they could not be considered impartial, since they had an interest in the conduct of the investigation. Second, the Combines Investigation Act did not require that a search warrant be issued only after evidence had been presented to show probable cause; rather, the act required only the possibility of finding evidence.
Dickson claimed that to accept such a low standard would be to "authorize fishing expeditions of considerable latitude." Third, the warrant did not indicate a particular place but would allow all Southam offices in Canada to be searched. Dickson described such a warrant as "tantamount to a license to roam at large on the premises of Southam Inc" — an unreasonable invasion of privacy.
One naturally wonders whether the Supreme Court's standard for protecting individual privacy might prevent public officials like those in the Combines Investigation Branch from effectively carrying out their duties. Peter Russell discovered that by the time of the Supreme Court decision in Hunter v. Southam, the Combines Investigation Branch had already modified its procedures for obtaining warrants so that they would comply with the higher standards.7 It appears that the lower standards were more convenient for the branch, but the new standards do not present any serious difficulties. The ability of the Charter to promote higher standards of procedural fairness in public administration is one of its positive effects.
Since the Hunter v. Southam decision, the Supreme Court has indicated some of the characteristics of what it will consider a "reasonable" invasion of privacy. In the Hufsky decision in 1988,8 the Court decided that a police officer's demand to see a person's driver's licence and insurance card during a spot check is not "an intrusion on a reasonable expectation of privacy.... There is no such intrusion where a person is required to [comply] with some legal requirement that is a lawful condition of the exercise of a right or privilege."9 The Court has also held that "writs of assistance" (blanket search warrants sometimes issued to the police for as long as they hold office) are unconstitutional,10 that taking a blood sample without legal authorization contravenes section 811 and that, at Canada's ports of entry, persons whom the authorities wish to strip-search must be given the opportunity to contact counsel before the search can take place.12
Fundamental Justice and the Refugee Determination Process
Canada's Immigration Act defines three kinds of immigrants who may apply to become permanent residents of Canada: persons who qualify according to a points system that takes into account employability and likelihood of adapting successfully to Canadian life; persons sponsored by relatives in Canada who are citizens or permanent residents; and persons who are refugees according to the Geneva Convention, that is, persons in need of protection because they have a well-founded fear of persecution in the country they are fleeing, owing to such factors as their beliefs or race.
Some refugees who wish to apply to Canada for protection do so at Canadian government offices abroad. Others come directly to Canada and make a refugee claim upon entry. According to the refugee determination process in place up to the Singh13 decision in 1985, those in the latter group were eventually examined under oath by an immigration officer, and the transcript of the examination was sent to the Refugee Status Advisory Committee. The committee would then advise the minister or his or her delegate about whether the applicant met the definition of a Convention refugee, and the minister or delegate would make a final determination. If the decision was against the applicant, the applicant could appeal to the Immigration Appeal Board within fifteen days. The Appeal Board would review the applicant's transcript and evidence submitted by the minister, but the applicant was allowed neither to examine the minister's evidence nor to have an oral hearing.
The events leading to the Singh decision involved Satnam Singh and several other Sikhs from India who had fled their home country because, they claimed, of the persecution they had suffered at the hands of Indian government authorities. The Refugee Status Advisory Committee kept a list of refugee-producing countries, and India was apparently not on the list. The troubles between the Sikhs and the central government had only recently begun, and at the time it had not been established by Canadian immigration officials whether Indian government officials sometimes persecuted innocent Sikhs who were not participating in terrorist activities. (Later, the Refugee Status Advisory Committee recognized that there were some cases of unjustified persecution of Sikhs in India.) Thus, Singh's application for refugee status was rejected, his appeal was dismissed by the Immigration Appeal Board, and he was ordered to be deported to India. Singh then appealed to the courts for a declaration that the refugee claimant procedures violated section 7 of the Charter, which guarantees "everyone" the right to "life, liberty and security of the person" unless "deprived thereof... in accordance with the principles of fundamental justice." It should be noted that section 7 refers to "everyone," which means every human being, whether a citizen of Canada, a permanent resident or a visitor (whether visiting legally or illegally).
When the case was first heard by the Supreme Court, some judges were disappointed that no arguments were presented about the possible relevance of section 2(e) of the Canadian Bill of Rights, which provides a right to a "fair hearing in accordance with the principles of fundamental justice for the determination of [a person's] rights and obligations." The Court reserved its decision and requested written submissions from both sides about this section of the Bill. These submissions were considered before the Court handed down its decision.
The panel assigned to the case consisted originally of seven judges, but Mr. Justice Julien Chouinard became ill and was unable to participate in the decision. Thus, the Singh decision is one of the few in which an even number of judges rendered a judgment. The six judges decided unanimously in favour of Singh, but three based their decision on the Bill of Rights, while the other three grounded their reasoning on the Charter.
The Charter Decision
Madame Justice Bertha Wilson wrote the decision based on the Charter, with Dickson and Lamer concurring. Wilson was faced with two major questions. First, was Singh deprived of the right to life, liberty and security of the person? And if so, were the procedures followed in accordance with the principles of fundamental justice?
The phrase "life, liberty and security of the person" can reasonably be interpreted in a number of different ways. For example, "life," "liberty" and "security of the person" could be considered as separate concepts, the deprivation of any of which could be enough to trigger a potential violation of section 7. On the other hand, the phrase could be considered as a single concept. Wilson left open the question whether one or the other of these views should prevail, but she specified that even if the "single right" approach were eventually to be adopted, each of the three elements of the right would have to be defined by the Court. Because the "security of the person" element was the one that most directly applied to Singh's situation, Wilson discussed possible meanings of the term.
A broad interpretation of "security of the person" might contain one of the rights included in the Universal Declaration of Human Rights: "a standard of living adequate for... health and well-being . .. including food, clothing, housing and medical care and necessary social services, and the right to security in the event of... circumstances beyond [a person's] control." Wilson said that it was not necessary for the Court to decide whether such a broad definition should be adopted, because "even if one adopts the narrow approach advocated by the counsel for the Minister, 'security of the person' must encompass freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself." Thus, she concluded that the refugee determination procedures infringe the right to security of the person if they permit the authorities to deport someone to a country where his or her life would be endangered.
In approaching the question of whether the procedures followed in the refugee determination process were in accordance with the principles of fundamental justice, Wilson concluded that fundamental justice must at least include the factors that the Supreme Court had already determined were implied by the phrase "fundamental justice" in section 2(e) of the Canadian Bill of Rights.14 For example, a "tribunal which adjudicates upon ... rights must act fairly, in good faith, without bias and in a judicial temper, and must give to [litigants] the opportunity adequately to state [their] case." Wilson allowed that procedural fairness "may demand different things in different contexts," but she nevertheless was "of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing." This is because without an oral hearing a refugee applicant would not have the opportunity of learning about all of the minister's evidence and therefore would not be able to respond thoroughly to the case against him or her. As a result, Wilson decided that the breach of security of the person (allowing deportation of a refugee applicant to a country where the applicant may be killed) was not in accord with the principles of fundamental justice.
Counsel for the government had "devoted relatively little time in the course of argument" to the question of whether a violation of section 7 could be upheld as a reasonable limit pursuant to section 1. In the absence of such evidence, Wilson determined that the violation of section 7 could not be justified under section 1.
The Bill of Rights Decision
Mr. Justice Beetz wrote the decision for the three judges who based their reasoning on the Bill of Rights; Estey and McIntyre concurred. Although Wilson in her decision agreed that the Bill "continues in full force and effect," those judges who based their decision on the Bill expressed no opinion about the applicability of the Charter. Thus, it is reasonable to conclude that the Bill of Rights was more central to the
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