Tuesday, July 29, 2014
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‘Reconciliation’ with First Nations, not the Charter of Rights & Freedoms, will define the Supreme Court in coming years, Chief Justice says

Joseph Brean

National Post

After three decades of judicial effort largely focused on interpreting the Charter of Rights & Freedoms, the Supreme Court of Canada’s work in the coming years will focus ever more on aboriginal treaties and conflict between Canada and its First Nations, according to the Chief Justice.

“We’re in the very early days in that saga,” Beverley McLachlin told an audience of law students Thursday night in Toronto.

“Canada, I believe, is a project on reconciliation. Our successes have always been in recognizing the differences and accommodating them and in working together with respect.”

Even as Quebec sovereignty rears its head once more, and assisted suicide threatens to divide the country as deeply as abortion did, Chief Justice McLachlin placed a striking emphasis on aboriginal affairs, and the Charter’s guarantee that “existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

From oil pipelines through the Rockies to property rights on reserves, and all manner of conflicting land claims, the potential legal issues in the age of Idle No More seem endless, though she did not detail specific ones.

She also described troubling new cases on freedom of association, a right that typically gets less ink than freedom of religion or expression. All of them will come up in new and unexpected ways, she said, even perhaps in the re-analysis of seemingly settled principles, for example as the court recently did in the hate speech case of William Whatcott.

Likewise, in the Charter’s Section 7 on “life, liberty and security of the person,” the language is so broad and open, the chief justice said, that this area is also likely to keep the top bench busy.

These Charter cases “keep coming up in new and diverse forms because they are so essential to our society,” she told a gathering of Pro Bono Students Canada, hosted by the Bay Street law firm McCarthy Tétrault.

They also often represent a bothersome conflict for a democratic society, when laws are found to violate fundamental rights, as might come up, for example, with Quebec’s proposed charter of values.

One student asked the chief justice her view on the “dialogue” between the Supreme Court and the country’s legislatures, a dialogue that can often seem like heated argument.

“First of all, it’s a metaphor. We don’t sit down and jaw with the legislatures. It can enlighten to some extent, but you shouldn’t take it too far,” Chief Justice McLachlin said.

In a constitutional democracy, legislatures have a minimum standard they must meet in terms of fairness, and though the Supreme Court starts from a position of deference, at some point — as when an individual’s rights are alleged to be violated — it must speak up.

“We are the final stop for any issue in the legal system in Canada,” she said.

This month marks the 25th anniversary of Chief Justice McLachlin’s appointment to Canada’s top court, which she has headed for 14 years, the longest tenure in Canadian history.

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