D10(a) - Charter Politics
Date: Jun 5 | Time: 10:30am to 12:00pm | Location: SWING 309
Chair/Président/Présidente : Erin Crandall (Acadia University)
Discussant/Commentateur/Commentatrice : Emmett Macfarlane (University of Waterloo)
The Court’s Adoption of Unwritten Principles Such as “Charter Values” and Deference to Bureaucracies on Constitutional Pronouncements: Christopher Taucar (CE Taucar, Barrister and Solicitor)
Abstract: The inquiry is whether (1) whether the court’s adoption of unwritten (constitutional) principles such as “charter values,” and deference to bureaucracies on Constitution pronouncements are impermissible under the basic rules of the Canadian System of Government, including Constitution; and (2) taken singly or together constitute a threat to real Constitutional rights. There is a growing unease among scholars and even judges with these practices, but the Canadian system of government approach and objective jurisprudence provides a more authoritative and devastating repudiation of the practices. First, judges cannot, and never had the legal authority to, use unwritten constitutional principles, as they said they can, to strike down or override or amend legislation or the Constitution, or treat it as Constitutional law even when the Constitution does not apply. The answer is sought commencing with the Conquest of 1066 and before. The more recent incantations of “charter values” which are not the Charter provisions themselves are examined. Second, the bureaucratization of the Charter has been impermissibly permitted and required by the Supreme Court, in which executive government is to be given deference on their interpretation and application of the Charter or “charter values” if they “proportionately balance these with statutory objectives, including deference on whether their own decisions violate the Charter. This discussion on the threat to legal and Constitutional rights will be further illustrated by one or more cases. If there is any necessity or interest in linking this paper with McLachlin C.J.’s legacy (for Workshop 2), conclusions can be drawn.
Intersecting Equality and Liberty Claims: Use of the Charter Section 7 for Litigating Environmental Injustice: Alex Wellington (Ryerson University)
Abstract: This paper develops a critical normative analysis of an emerging trend in Charter jurisprudence. The trend, evident in Bedford and Carter cases, incorporates claims relating to equality into legal arguments alleging infringements of the Charter right to liberty and security of the person. Such innovative arguments were central to several recent cases involving indigenous communities in Ontario: (i) Lockridge and Plain v MoE, pursued by members of Aamjiwnaang First Nation (Sarnia, aka “Chemical Valley”), and (ii) Grassy Narrows v Ontario, pursued by Grassy Narrows First Nation (near Kenora). Litigants in those cases challenged government decisions, asserting that cumulative effects of exposure to toxic pollution violated Section 7 as well as Section 15 (protecting the right to equality). Each case targeted distinct government decisions: (1) approval of increased air pollutant emissions threshold of Suncor (impacting the Aamjiwnaang community in Sarnia); (2) permits for logging near Kenora, anticipated to further exacerbate the decades long effects of pernicious and persistent exposure to mercury (Grassy Narrows). The communities shared a common frustration with the striking integrity gap between expected levels of protection and the reality on the ground. However, litigation efforts have not yet generated successful court outcomes (a notable contrast with Bedford and Carter cases). The litigants faced considerable challenges as they struggled to make their demands justiciable and fit concerns about unequal treatment and disparate impacts within the scope of individual autonomy and liberty. These cases dramatically illustrate the difficulties of reconciling divergent notions of autonomy, equality and liberty in contemporary liberalism.