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Rock star Justice breaks down Charter of Rights Retired Supreme Court Justice Ian Binnie asks the tough questions about the Canadian constitution

that the right to counsel did not necessarily extend to the right to have a lawyer present during police interrogation.

o one is in favour of child pornography. But, theoretically, under child pornography laws you could criminalize half the paintings in the Louvre.”

Binnie dissented from the majority judgment in Sinclair (unlike other foreign jurisdictions, the Supreme Court of Canada does not require unanimous decisions). In his dissent, he argued that the police have more power over detainees under current law than is allowable by the charter. “Sinclair seems like a very basic legal question to me,” he said. “But it took over 20 years for it to come before the court and have it answered.”

“N

On an unseasonably warm Tuesday in January, four Windsor law students and the Lance are jammed into a tiny room in the Ron W. Ianni Law School with a veritable rock star of the legal profession— former Supreme Court of Canada Justice Ian Binnie. “Is it artistic expression? Where is the line?,” he continued. It’s one of the many tough questions he has had to face while on the bench. At 72, Binnie is soft-spoken and a touch grand-fatherly. You wouldn’t suspect that this man has made decisions that have shaped a nation. The first hearing he ever heard as a Supreme Court justice was the Quebec Secession Reference in 1998. The opinion of the court on whether Quebec could legally separate from Canada wasn’t binding. However, it remains one of the most important writings of the Supreme Court of Canada in the charter era. On Jan. 31, 2012, Justice Binnie gave a keynote lecture at the law school appropriately titled “Parting Shots.” Thirty years after the Canadian Charter of Rights came into force, we’re asking thorny legal questions about what exactly the charter means to us as Canadians. Binnie is fully aware that the charter doesn’t have all the answers. “We’re still answering some basic questions about what the Charter of Rights means for this country,” Binnie noted thoughtfully. He pointed to R v. Sinclair, a 2010 decision of the court in which a detainee’s right to counsel under section 10(b) of the charter was debated. In that case, a majority of the court found

Canada’s Constitution is young, in relative terms. Though it’s founding document, the British North America Act, has been around since 1867, the Charter of Rights and Freedoms and the Constitution Act were enacted in 1982 after some blood, sweat and tears on the part of then Prime Minister Pierre Trudeau. The charter is as controversial a document then as it was now. Academics and lawyers alike have argued about what provisions the charter should include. It’s made it difficult for anyone— lawyers or the public— to fully understand what rights are afforded under the Charter and those that are not. University of Windsor law student and co-chair of the Charter Project Bryan Pascoe described how he and fellow student Michael O’Brien envisioned trying to get people talking about the charter. “Mike and I were having a conversation about how it would be neat to have an audio version of the charter. It snowballed from there.”

The Charter Project now runs jointhediscussion.ca, a non-partisan website that has information and forums dedicated to discussions about fundamental rights and freedoms. It’s one of many ways that Pascoe and O’Brien have decided to bring charter issues into the spotlight in 2012. Their other campaigns now include a high school education program and a series of public service announcements featuring Canadian musicians and actors. In fact, right before our interview, Pascoe was readying for a busy weekend of co-ordinating PSA shoots with celebs in Los Angeles and Vancouver, including B.C.-based songstress Jill Barber. “We have a volunteer base of almost 40 people, so we’ve been lucky in having people with connections that we can use to make some of the PSAs,” Pascor said. The Charter Project has also been shooting additional video with legal luminaries about charter issues. It’s all part of an effort to get people talking. Pascoe hopes that the PSAs will serve as a way of getting people to the Charter project website. “We’re not cheerleading the charter,” he said. “We’re providing the tools so that people can learn more about it and come to their own conclusions.” Despite it’s importance in shaping Canada, the charter is still a mysterious document for many Canadians. Binnie pointed to the media’s role in disseminating information about court cases decided under the charter. “It bothers me that the media will

read more into a judicial decision than is there,” Binnie said. Though he by no means painted all of the media as reporting irresponsibly, Binnie expressed disappointment that some media outlets go looking for problems. “If you want to find evidence of activist judges,” he said, “they’ll certainly find it.” Binnie retired from the Supreme Court in the summer of 2011, but he’s still keenly aware of the questions that will be faced by his successor. “There will be litigation over police powers, citizens rights to privacy and the ability of Canadian citizens to stand up to the state,” he said. “So long as there are interactions between individuals and the state, the charter will continue to grow.” Now seems a very appropriate time for Canadians to become more engaged with charter issues. Three more Supreme Court justices are expected to retire before 2015. The Conservative majority government will likely appoint five new justices by the time the next election rolls around (Justice Louise Charron retired along with Binnie in 2011). The federal governments selections could greatly affect the kind of decisions that are passed down by the Supreme Court. “Canada is extremely fortunate that there is strong recognition for rights not present in other countries,” Binnie noted. There is indeed something special in the idea that we are free to debate our rights without fear of reprisal from the state. Pascoe concurs. “Personally, I think there are good and bad things about the charter, but it’s a good thing we live in a country where we can question our rights.” Now it’s up to other Canadians to do the same.

feature{s} • thelance • feb.O8.2O12 • O5

h.g. watson FEATURES REPORTER ______________________________

Issue 21, Volume 84 - The Lance  

The Lance is the official student newspaper of the University of Windsor and the second largest newspaper in the city! The newspaper offers...

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