Charter Influence On Canadian Politics
Ever since the Charter came into effect in 1982, it has had major impact on Canadian politics and law. The Charter allows the judicial and legislative branch to be transparent and able to be holding each other accountable. Many would argue that the charter has given court’s infinite powers and they control the legislative branch. However the courts perform a policing function for legislations to see if they violate the master law, the Charter. Therefore if the legislation branch does their “first order Charter duties” properly, which is charter proofing their laws, they will not go for review with the Supreme Court of Canada (Maclvor 138). Each branch of government has their own responsibilities to pursue and they have different resources to achieve them. For example the, the judicial branch’s responsibility is to protect the rights and freedoms of individuals where the legislation branch has to make laws to tackle down social issues (Maclvor 142). Each branch has their own resources to help them with their responsibilities, for instances the Legislative Branch have Department of Justice and Standing Committee. Both of these committees work for the government helping doing research and formulating legislations as well charter-proofing legislation so they don’t go violates the rights and freedoms of Individuals (Maclvor 142). The Charter has allowed for democratic dialogue between both branches of government, allowing for constructive conversations and legislative sequels. Legislative sequels are laws made by the legislative branch responding to a decision by the Supreme Court of Canada. Sometimes the legislation can support the court’s decision or go against it. (Maclvor 143). We will be examine two cases to see how the Charter has made Canada a fairer and more open society, both cases are different in the way the legislative branch had responded to the court’s decision.
The first case we will be looking at the Daviault case that gained a lot of popularity at the time because of the controversial decision that was reached. Daviault Case was about a man who sexually assaulted a partial paralyzed woman and used the defense of heavy intoxication for his assault. The trial judge acquitted him of the charges because there were reasonable doubts whether he had mens rea to commit the assault since he was heavily intoxicated. (R. v. Daviault) The Quebec Court of Appeal found out that through the “Leavry Law”, self-induced intoxication might only be admitted to negate the mens rea of offences of specific intent. It may not be admitted to negate the mens rea of offences of general intent, including the offence of sexual assault. (R. v. Daviault) The case was taken to the Supreme Court of Canada claiming it was violating the accused’s section 7 and section 11(d) rights guaranteed by the Charter. The majority argued that the crown didn’t have to prove the mental intent or men’s rea without a reasonable doubt for sexual assault violated the Daviault’s due process rights of innocent until proven guilty. (R. v. Daviault) The majority also agreed that substitution of voluntary act of becoming intoxicated with the voluntary action involved in sexual assault as the mens rea for the crime also violated Daviaults section 7 rights. (R. v. Daviault) Therefore based on expert witness that testified, the majority judges decided to acquittal Daviault of the sexual assault charges, because he was heavily intoxicated similar automatism. A person in a state of automatism cannot perform a voluntary willed act; it would equally infringe s. 7 of the Charter if an accused who was not acting voluntarily could be convicted of a criminal offence. To convict in the face of such a fundamental denial of natural justice could not be justified under s. 1 of the Charter . (R. v. Daviault)
This decision created a sense of fear within the public especially women and children making them vulnerable to assault by intoxicated individuals. Within 6 months of the ruling 5 men were acquitted that were charged with sexual assault or assault using the heavy intoxication defence (Maclvor 144). The Department of Justice under the authority of the government came up with Bill C-72, which forbid the use of intoxication as defence for criminal behaviour (Maclvor 145). This legislative sequel would be considered an “In Your Face” reply because the government makes a legislation that directly contradicts the Daviault majority’s ruling showcasing the government doesn’t agree with their decision (Maclvor 145). Bill C-72 also included a preamble explaining the purpose of this legislation. To summarize what the preamble stated, the Parliament of Canada had research to support the relationship between alcohol and drug abuse with violence. In addition the law is to help protect rights guaranteed under section 7, 15 and 29 of the Charter for women and children who face the most violence from substance abuse (Maclvor 146). The Preamble was to showcase the Supreme Court that intent of the law if it was to be challenged and to show that legislation branch took their “first order duties”seriously (Maclvor ). The legislative sequel reflects on the broader approach of the charter, where the majority decision only focused on the due process rights of the accused they forgot to look at the rights of the victims or potential victims (Maclvor 146). This case illustrates how there is no judicial supremacy because Parliament came up with a legislative sequel that goes against the court’s decision. In addition the judicial branch made a decision based on unreliable expert witness who put the rights and freedoms of many individuals at risk, however legislative sequel corrected the court’s mistake. This shows how each government branch keeps one another accountable under the charter, making Canada a fairer and more open society. The case of M. v. H. was another case that went to the court dealing with same sex relationship and the law. To briefly explain the case, the Family Law Act, Section 29 defined “spouse” in s. 29, which includes a person who is actually married and also “either of a man and woman who are not married to each other and have cohabited . . . continuously for a period of not less than three years (M. v. H.). Hence same sex couples would not receive the same benefits that opposite sex couples get like employment benefits and etc. The couple challenged this law saying it violated their rights guaranteed under section 15(1) of the Charter, their equality rights to be treated equally under the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability (M. v. H.). The Trial Court and Ontario Court of Appeal agreed and the court ruled that section 29 of FLA violated section 15(1) of the charter and it can’t be justified by section 1 of the Charter. The court even gave the Ontario parliament to one-year time limit to change their laws, so they include same sex couples in the FLA (M. v. H.). However the Ontario Attorney General decided to take the case to the Supreme Court with the support of the Conservative Ontario Government. The Supreme Court upheld the decision reached by the Court of Appeal, saying section 29 did violate the charter and couldn’t be saved by section 1 of the charter, therefore ordered the Ontario Government make changes to their legislation. (M. v. H.) The Ontario government responded with Bill 5 which made 67 amendments to provincial legislations by giving common law status to same sex couples (Maclvor 153). This legislative sequel can be defined as “The Devil Made Me Do It” because it wasn’t a legislation the government wanted to pass but they had to because of the pressure from the Supreme Court (Maclvor 153). The government didn’t want to make these changes because during the time frame this issue was brought to court, same sex relationships was frowned upon within our society and not accepted by majority of the public. Therefore the government felt if it passed laws supporting same sex relationships, they would face backlash from the public. This case illustrated how the constitution is the master law and protects the rights of minorities. Same sex couples are minorities so usually laws are not going to be in their favor because it goes against what the majority believes in. The charter allows minorities to fight for their individual rights and freedoms in court and to protect themselves lawmakers who support the majority’s beliefs and norms. This was the intent of the Charter, to protect the minority’s rights and freedoms, which are often forgotten in democratic state. Therefore, we can see through the cases presented the impact the Canadian charter had on Canadian politics and law making. When Trudeau created the Charter, it was to protect individual’s rights and freedoms from the government body as well to protect the minorities. Since we live in a democratic state, government are going to govern based on the majority, so the rights and freedoms of minorities get lost. The Charter allows for democratic dialogue and allows the two different branches of government to hold each other accountable under the Charter. The Charter ensures that lawmakers and the courts don’t abuse their powers and the rights of individuals are protected. In conclusion the Charter has had a good impact on Canadian law and politics, making our nation a fairer and more open society.

Work Cited

MacIvor, Heather. Canadian Politics and Government in the Charter Era. Toronto: Thomson Nelson, 2006. Print.

M. v. H. Supreme Court of Canada. 20` May 99. Lexum. Web. 18 Dec. 2015. <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1702/index.do>.

R. v. Daviault. Supreme Court of Canada. 30 Sept. 94. Lexum. Web. 18 Dec. 2015. <https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1172/index.do>.