Ottawa Law Review 2012 Symposium, University of Ottawa
Justice Robert Sharpe – The Court of Appeal for Ontario
The Law Faculty of the University of Ottawa held in 2012 a symposium marking the 30th anniversary of the Canadian Charter of Rights and Freedoms. Its keynote speaker Justice Robert Sharpe spoke on the 25th commemorative anniversary of the R. v. Oakes  and the its historical circumstances surrounding the decision. The R. v. Oakes , noted Justice Sharpe, was certainly amongst the most important first cases of the Charter, completing along with Hunter et al. v. Southam Inc.  and R v. Big M Drug Mart Ltd.  a trilogy of founding Charter challenges that have since provided the “basic structure and framework” in interpreting and applying the Charter. Justice Sharpe argued that the trilogy as well as a series of speeches by Chief Justice Dickson challenged what Justice Sharpe called the “legal formalism” of the judiciary: the strong tendency to see the law as emanating strictly from statutes and determined by deductive logic in a purely “mechanical fashion” rather than being also informed partly by “outside contexts such as social contexts or political contexts” and the legal tradition.
Justice Sharpe asks us to remember that at the time of the Charter’s entrenchment that there was much uncertainty in the effect the Charter would have on the judiciary and the interpretation the Charter would be given; a concern that was particularly amplified by the narrow technical interpretation the Courts had given Diefenbaker’s 1962 statute, the Bill of Rights. While there was much euphoria surrounding the circumstances of entrenching the Charter and a clear political will in enacting it, there were serious questions however in the willingness and the capacity of the judiciary to make something out it. Judges were at the time dubious of the idea itself of an entrenched Charter — they had been after all educated, practiced law and were quite confident in their ability to make judgments and serve justice without it.
In the court’s attempt to navigate the euphoria of the new epoch and the concerns of the Charter, Justice Sharpe argues that three themes characterized the trilogy of judgments authored by Chief Justice Dickson — themes that were also explored in numerous speeches by the Chief Justice: first, the need for boldness, i.e., the judiciary needed courage and willingness to do something that was new and different; second, the need for discipline, i.e., the insistence that while the judiciary needed to be bold, it also needed to be securely rooted in the legal tradition in order to ensure that new grounds are based on past legal traditions; third, democracy, i.e., the insistence that the Charter be understood not in conflict but consistent with democracy and other fundamental political values.
These themes were themselves the subject of numerous public speeches Chief Justice Dickson gave to help guide the Judiciary in their interpretation of the Charter before cases reached the Supreme Court of Canada. In 1982, Chief Justice Dickson in a speech “Judging in the 1980s” said to Provincial Court Judges “the Canadian judiciary, and in particular the Supreme Court of Canada, will either breathe life into the Charter or reduce it to a hollow promise of things that may have been”. There was the emphasis on boldness. On October 29th 1983, Chief Justice Dickson in a speech to Dalhousie Law faculty and students said “the meaning of the charter is not to be found by consulting the dictionary. Charter interpretation requires a philosophical and possibly a political theory as context. The courts will have to beyond abstract logic and disembodied precedent. When new occasion cries out for law, let us dare to make, let us recognize that law is it living organism, its purpose is to serve life, its vitality is dependent upon renewal”. Here, the elements of boldness and legal tradition as well as democracy.
The Charter challenges would require the judiciary to be bold, disciplined and attuned to the principles that underlined the social and political contexts of the Charter. In Justice Sharpe’s words, the Charter would become “a mechanism for peaceful, progressive change and an anchor in the storm in social evolution to ensure that Canadian values are immutable and shielded from encroachment from majority will”.
Hunter et al. v. Southam Inc. 
The first major Charter challenge was Hunter et al. v. Southam Inc. . The question was whether the powers of search and seizure given to investigators under Combines Investigation Act that were used to investigate Southam Newspapers were consistent with s 8 of the Canadian Charter of Rights and Freedoms. In their judgment, the court pursuant to that section of the Canadian Charter of Rights and Freedoms determined that the Combines Investigation Act did not contain appropriate provisions for the administration of warrants — individuals were provided under the Charter a reasonable expectation of privacy.
Justice Sharpe noted that the Supreme Court of Canada in Hunter et al. v. Southam Inc.  took into particular consideration the broader social contexts. The Canadian Constitution for Justice Dickson was a permanent document that required it to be updated to meet new changing circumstances. The “boldness” in this decision was Chief Justice Dickson’s revival of the “living tree” constitutional principle of interpretation in Edwards v. Canada (Attorney General)  — a case decided by the Judicial Committee of the Privy Council (JCPC) which determined the words in the British North American Act 1867 were not frozen to the meaning they had in the year of its enactment in 1867 — women were in fact persons and eligible for Senate appointment. The court said in Edwards v. Canada (Attorney General) :
“The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. Like all written constitutions it has been subject to development through usage and convention […]”.
Although the “living tree” principle in the Edwards v. Canada (Attorney General)  case was a foundation rooted in legal tradition, Justice Sharpe admits that it was only became a tradition in the late 1970s before it became part of the Charter.
R v. Big M Drug Mart Ltd. 
The second major Charter case was the R v. Big M Drug Mart Ltd. . The question was whether the Lords Day Act violated s 2 of the Canadian Charter of Rights and Freedoms, and if so, whether it was justifiable under s 1, and whether the Lords Day Act was intra vires of Parliament’s criminal power under s 91(27) of the Constitution Act of 1867. In the Court’s judgment, the Lord’s Day Act was found in violation of s 2 and so pursuant to s 52 of the Constitution Act 1982 was found unconstitutional.
For Justice Sharpe, the case was particularly remarkable for the signal it gave to minorities in Canada in what the Charter could mean for minority rights, and also what the Charter could do to enforce the fundamental principles of democratic society. Justice Sharpe noted the following passage in particular:
” If I am a Jew or a Sabbatarian or a Muslim, the practice of my religion at least implies my right to work on a Sunday if I wish. It seems to me that any law purely religious in purpose, which denies me that right, must surely infringe my religious freedom.”
For Justice Sharpe, this judgment demonstrated the willingness of the court to “put itself” in the position of minorities to assess the impact of legislation against the Charter, signaling a “remarkable turn for the Judiciary” and “signal” for minority groups. The purposive approach was also applied in R v. Big M Drug Mart Ltd.  not only in determining the meaning and origins of Lord’s Day Act but also to establish the consistency between the Charter and democratic principles.
“The purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter.”
Justice Sharpe here argues that the court found this consistency in the following paragraph of the decision.
“Individual conscience and individual judgment also lies at the heart of our democratic political tradition. The ability of each citizen to make free and informed decisions is the absolute prerequisite for the legitimacy, acceptability, and efficacy of our system of self‑government.”
R. v. Oakes 
The third Charter challenge was R. v. Oakes . At issue was whether the reverse onus established under the Narcotic Control Act violated the presumption of innocence guaranteed under s. 11(d) of the Charter. The reverse onus provision was not applied at the trial at the discretion of the provincial judge, and the case was appealed to the Ontario Court of Appeal by the Crown, The Ontario Court of Appeal held, with G. Arthur Martin authoring the opinion, the lower court’s decision stating that the reverse onus provision was only valid if a rational connection had to be proven between the proved fact and the presumed fact. The decision was appealed to the Supreme Court of Canada.
The Court in its decision found that the Court of Appeal of Ontario had squarely based the s 1 analysis of the Charter onto the applicant trying to strike the law. Justice Sharpe argued that the analysis provided by T.A. Cromwell in “Oakes: A Bold Initiative Impeded by Old Ghosts” (1983), which advocated for a two stage analysis: first, prove the violation, and second, if the crown wants to justify it, it is up to the crown do prove the limitation was the appropriate test. For Justice Dickson s 1 was vital to the case. The decision determined, as in R v. Big M Drug Mart Ltd.  that you must have a generous interpretation of the right, and that the burden was on the crown to justify any limitation. First, you must determine the violation and second the crown must defend the limitation.
Moreover, following the dictate of Lord Sankey, Justice Sharpe notes that the Supreme Court of Canada in its decision followed Sankey’s “golden thread” principle in arguing the issue was also a matter of human rights. The court determined that persons coming in front of the courts are entitled to respect and dignity, they are persons entitled to be presumed innocent.
Justice Sharpe noted that there is a strong democratic principle in determining and applying s. 1 — the judiciary must be guided by the values and principles essential to a free and democratic society. This includes “respect for human dignity and for the human person, commitment to social justice, and a combination of wide variety of beliefs, respect for cultural group and identity, and faith and social and political institutions to enhance the participation of individual groups in society”.
In conclusion, Justice Sharper closed in remarking that it took much patience, discipline and boldness in rooting the Charter in both the principles of the legal tradition and the principles of democracy — an inheritance that was shaped and continues to be re-shaped today.