A hedge against populism

by Kent Roach

The commentary was first published in the National Post on February 15, 2007. It is part of "The Charter at 25" (Fourth in a six-part series).

Few people would have predicted in 1982 that about two-thirds of all Charter decisions by the Supreme Court  would involve the rights of those accused of crimes. The Dickson and Lamer courts (spanning 1984 to 2000) interpreted the accused's rights and remedies very generously, and in some cases went beyond even the liberal U.S. Warren court of the 1960s. Writing on the 10th anniversary of the Charter, two prominent defence lawyers declared that the Charter was "the stuff that dreams were made of!"

Dreams for some, but nightmares for others. The court has at various times excluded evidence crucial to establish the guilt of those accused of murder, sexual assault and other serious crimes. Any constitutional violations committed by the police while conscripting evidence from the accused will generally result in the exclusion of the evidence from subsequent criminal trials.

But it would be wrong to leave the impression of an extravagant due process revolution, or one that has produced a tyranny of the Charter in which the courts dictate criminal- justice policy. The court has not adopted an automatic exclusionary rule: With respect to drug and gun crimes, it proceeds cautiously, balancing the seriousness of the Charter violation against the adverse effects of excluding critical evidence. After having struck down one mandatory minimum sentence in 1987, it has upheld all subsequent mandatory sentences that have been challenged.

Most of the court's decisions pit the unelected court against the equally unelected police and prosecutors. The court's activism with respect to criminal justice builds on solid rule-of-law foundations. It is important for the court to take unpopular stands to defend the rights of the accused who are, with the possible exception of non-citizens, the most unpopular segment of society.

Far from a tyranny in which criminal justice policy is dictated by the Charter, we live in a world without enough smart criminal justice policy. Successive governments lurch from crisis to crisis, looking for quick and simplistic solutions. Too much legislation is reactive either to specific court decisions or horrific crimes. We need more proactive and thoughtful policy and planning about what we hope to achieve with criminal justice.

The Harper government has taken away one of its instruments for forward and independent thinking about criminal justice policy by cutting off funding for the Law Commission of Canada, established by Parliament in 1996. The Law Commission examined issues such as the place of restorative justice or private policing in the justice system.

In the field of national security, by contrast, Canada has had a coherent policy since 2004. In part because of the 2003 SARS outbreak, the policy is designed to respond not only to terrorism but to pandemics and natural disasters. It features the all-risk theme of emergency preparedness. The failure of U.S. Homeland Security to mitigate the ravages of Hurricane Katrina confirms the wisdom of the Canadian approach. The Canadian approach is the result of security policy-making, not fencing with the courts over how the Charter should be interpreted.

The O'Connor Commission examining the Arar case has reminded us of the dangers of sharing inaccurate information and the need for more effective review of the RCMP and other national security agencies. Canadian national security policy is evolving into a new phase -- one in which more attention is devoted to review and perhaps oversight, and less to creating new laws and ensuring that they respect the Charter.

Effective and coordinated review by executive watchdogs such as the Security Intelligence Review Committee, the Privacy Commission and a new body to review the RCMP is needed to uphold the spirit of the Charter because so few security cases will actually go to court. There are important questions about the balance between review and oversight; between review for propriety and for efficacy; and between review by executive watchdogs and by legislative committees. The resolution of these debates will be important to our evolving security policy, but they are not dictated by the Charter.

The Charter will continue to play a significant role as our criminal justice and security policies evolve. This is how it should be. Putting someone in jail is perhaps the most significant act that a democracy can undertake and the Charter, as enforced by the independent judiciary, helps ensure that we recognize the momentous nature of such an act. Treating criminals and terrorists fairly also helps legitimate the punishment that they receive.

Without the Charter vigorously enforced by the courts, it would be too easy for Parliament, in its desire to send signals that it is tough on crime, to enact over-the-top laws that violate human rights. Without the Charter, Canada's anti-terrorism laws might look more like those in Australia. There, the Howard government has engaged in an orgy of popular law-making that has made membership or association with groups that praise terrorism a crime, and has allowed their version of the Canadian Security Intelligence Service to detain people for up to a week on the basis that they have "intelligence that is important in relation to a terrorism offence."

We need strong courts to enforce the Charter, but we also need strong governments to proclaim and implement effective criminal-justice and security policies. Many seem to think that strong courts somehow weaken strong governments. But this approach discounts dialogue between courts and legislatures under the Charter. More importantly, it fails to acknowledge the vast policy space that governments occupy (or fail to occupy) on security issues that is not affected by the Charter.

In the years to come, the Charter will continue to constrain and soften the sharp edges of Canada's security policy. But hopefully, governments will continue to see the big picture and develop sound criminal justice and security policies that respect, but not are not dictated by, the Charter.