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The lengthy process of considering cases based on the Charter of Rights and Freedoms

The “great philosophy” of “additional speed” advocated by the Supreme Court in the Jordan decision must animate the examination of cases based on the Charter of Rights and Freedoms, whether criminal or not, maintains the Chief Justice of Canada, Richard Wagner.

However, having a law deemed incompatible with the rights and freedoms protected by the Canadian Charter invalidated is an obstacle course. “Between when [une personne] will file an application at first instance and in the long term, if it ever goes before the Supreme Court of Canada, where it will be able to have this standard invalidated, it could take 10 years. […] except for rare exceptions, these laws will produce effects during the time of the dispute, ”explains law professor at Laval University Louis-Philippe Lampron. “So, a somewhat reckless government that adopts a law knowing full well that there is a good chance that it will be broken at the end of a legal challenge, it can buy itself ten years of validity”, adds- he.

How can we accept that people who firmly believe that their fundamental rights and freedoms are violated wait all this time and put their life plan on hold?

“It’s better than before,” argues Chief Justice Wagner. “It also follows the great philosophy – which should normally color all legal remedies of any kind whatsoever since the Jordan decision was rendered – of additional speed. »

In his view, “certain basic, substantive cases in constitutional matters” require “more time” since they pose “fundamental questions” to which the Court will provide answers having “an impact on our future generations”, adds- he. As an example, he cites the review of the Carter case, which culminated in 2015 in the cancellation of Criminal Code provisions that prohibited physician-assisted suicide. “The hearing at first instance lasted a year: there were 50 experts, there were 36 volumes of affidavits, it was enormous, he says. And that’s the reason why, later, we changed the precedent of Rodriguez [de 1993], because the proof was different, because the evolution of science was different, the mores, the expectations too. »


The Chief Justice recalls the existence of shortcuts allowing the Canadian Parliament to seek the opinion of the Supreme Court “on the legality of such provisions of a federal law” – or the Quebec Parliament to request the opinion of the Court of appeal “on the legality of such provisions of a Quebec law”. “That is much faster. […] At that point, it may only take a few months, ”points out the magistrate. But what if the government and, by extension, Parliament refuse to take this shortcut?

The Quebec government has remained deaf to appeals from lawyers and politicians of all stripes who have urged it to submit its bill on the secularism of the Quebec state to the Court of Appeal without delay.

Bill 21, which prohibits certain employees of the Quebec state, including police officers, prosecutors, prison guards, teachers and principals of public primary or secondary schools, from wearing a religious symbol in the exercise of their functions, was challenged June 17, 2019, the day after its adoption by the National Assembly. The Superior Court ruled on the merits of the case on April 20, 2021, a year and 10 months later. The Quebec Court of Appeal and, one day, the Supreme Court of Canada will do the same.

Professor Louis-Philippe Lampron wonders if “there would not be a way to think about a mechanism for a priori control of the validity of laws” similar to that developed by the Constitutional Council in France. “But, there is no question of having the Prime Ministers of Canada who would sit on this body,” specifies the author of the essay. Cursed charters ! (Editions Somme tout, 2022).

The Shadow of Law 21

Moreover, Bill 21 was on everyone’s lips during the press conference marking the 40e anniversary of the Charter of Rights and Freedoms hosted by independent Manitoba Senator Marilou McPhedran on Parliament Hill in Ottawa on Thursday. “The existence of the Bill of Rights does not guarantee that politicians and governments will protect these rights. Currently, the government of Quebec knowingly and deliberately violates the rights of racialized religious minorities under its law 21 on “secularism””, notably argued the founder of Canadians United Against Hate, Fareed Khan, calling in the same breath the population to block “politicians ready to sacrifice the rights of Canadians if necessary”.

Jordan decision: the end justified the means

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