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Speaker's Corner: The Charter, the great protector

Justice Ian Nordheimer’s recent decision in Ali v. Canada (Attorney General), 2017 ONSC 2660 underlines the centrality of the Charter of Rights and Freedoms in protecting underprivileged and marginalized members of our society. The Charter turns 35 years old this year, and while its history has not been without controversy, in both political and legal circles, Ali demonstrates the Charter’s continued ability to influence our jurisprudence.

Kashif Ali had lived in Canada for approximately 30 years without legal status. As a result of his criminal history, the Canadian government sought to deport him. However, the government couldn’t ascertain his country of origin, so Ali was instead held in detention for approximately seven years. Part of his detention was spent in solitary confinement.

Ali brought an application for habeas corpus to the Superior Court of Justice, arguing that the detention violated his Charter rights. Prior to the Superior Court accepting its exceptional jurisdiction to hear a habeas petition, the federal Immigration and Refugee Board had concluded on numerous occasions that Ali’s detention was appropriate in the circumstances. The board said Ali was “actively hampering the Minister’s effort” to obtain information as to his home country. In his decision released April 28, Nordheimer relied upon the Court of Appeal’s decision in Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700, wherein the court stated that “[w]here there is no reasonable prospect that the detention’s immigration-related purposes will be achieved within a reasonable time . . . a continued detention will violate the detainee’s [s.] 7 and 9 Charter rights and no longer be legal.”

In Ali, the court held that the length and uncertainty of Ali’s seven-year detention contravened the Charter’s liberty and arbitrary detention provisions under ss. 7 and 9. According to Nordheimer, there was no reasonable prospect that information or documentation would arise in a reasonable amount of time, thereby permitting the government to deport Ali. As such, Nordheimer ordered Ali to be released from detention with terms and conditions. It is impossible to say whether the Charter is the reason why Ali was released.

Before the Charter was enshrined into the Constitution, the common law and Bill of Rights attempted to protect individuals against arbitrary detention and the deprivation of liberty.
However, the Bill of Rights holds the same legal status as any other legislation and the common law evolves and sometimes even changes completely with the stroke of a judge’s pen.

Conversely, the Charter provides a consistent yardstick by which to review governmental action. As a result of the past 35 years of case law interpreting the Charter’s succinct text — and especially those cases that have reached the Supreme Court of Canada — politicians are cognizant of the Charter when drafting legislation for fear that a provision will not withstand its constitutional guarantees.  

With the above in mind, the Charter’s greatest legacy may not be legal but rather psychological. Since its inception, the Charter has entrenched the language of human rights in the Canadian psyche in a way that did not exist prior to 1982. At times, it has been the catalyst in triggering discussion in the broader Canadian society on monumental topics such as religious accommodation, abortion, criminal sentencing and, most recently, the right to physician-assisted suicide. The Charter has moved the discussion of individual rights from the sole purview of the legislative branch to the judiciary, at least in part.

Therefore, those individuals or groups affected by a governmental actor can directly bring a Charter challenge before the courts rather than risk their fate in the hands of politicians who may be tied to special interests. In that regard, Ali’s plea for freedom may have never been heard if left to political will.

Surely, he holds little, if any, sway over any member of Parliament as he does not have the ability to vote and, as such, would not have garnered any real attention from elected officials.
Also, Ali does not have the notoriety or influential connections that others have possessed in the past in order to lobby the Canadian government for a release from detention. While he may have had limited political influence and no legal status in Canada, Ali’s legal rights remained intact under the Charter. This is the Charter’s legacy — the ability to help the hapless.

Some may recall that the Harper administration did not explicitly extol the Charter, perhaps in part due to the document’s historical tie with the Liberal government of Pierre Trudeau. It was not long ago that the federal Conservatives ignored the Charter’s 30th anniversary, much to the chagrin of advocates and activists. The Harper administration incurred its share of defeats at the hands of the Charter. Its goals of expanding mandatory minimum sentences and forcing women to remove face veils at citizenship ceremonies did not pass the Charter’s legal tests.

The lesson that abides from that recent past is that governments are temporary and only one election away from losing their legislative power. While policies might differ from one administration to the next, what distinguishes our society from an ochlocracy or even dictatorship is the strict adherence to the rule of law.

This adherence necessitates the presence of robust Constitution-based rights that protect the powerful and powerless all at once. Over the past 35 years, the Charter has provided this rights framework independent of the prevailing political tide. Ali is simply its latest expression. Thankfully, there will be many more.

Hassan M. Ahmad is a litigation lawyer with Loopstra Nixon LLP in Toronto.

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