Charter Values, Charter Remedies

It was all over the news that on October 13, 2010, the Court of Appeal for Ontario declared that a lower court judge was in error in ordering a woman to remove a facial cover, a niqab, at a preliminary hearing.  The case is called R. v. N.S and pitted the interest of the witness's right to religious freedom against an accused right to a fair trial.  The result was not surprising and will no doubt be embraced by a large majority of both the public and the legal community.

The court decided that the preliminary hearing judge should have conducted an inquiry into whether the witness should have been allowed to testify in the manner she desired.  This meant too that she should have told of her right and afforded the opportunity to consult her own counsel. 
The court noted a "quandary faced by the preliminary inquiry judge":
  • [47]          . . .  Both M---d.S. [the accused] and N.S. [the witness] have powerful claims that seem to lead to diametrically opposed conclusions.  At least at first blush, it would appear that the constitutional values in issue collide.  Faced with an apparent collision of constitutional values, a court must first attempt to reconcile the rights so that each is given full force and effect within the relevant context..
  • [48]          Reconciliation of apparently conflicting rights requires that no Charter right be treated as absolute and that no one right be regarded as inherently superior to another:  R. v. Mills, [1999] 3 S.C.R. 668, at para. 61; Dagenais, at p. 877; R. v. Crawford, [1995] 1 S.C.R. 858, at para. 34.  Nor can the reconciliation of competing rights be addressed in the abstract without regard to the specific factual context...
The interesting aspect of the case the I wish to focus on is not the decision itself, but what court said about the Charter.  What was interesting was that the process for getting the matter heard was generated by what is commonly called an application for a Charter remedy.  The court simply said this was not necessary.  While a discrete application is often the only way to get relief, frequently invoking the Charter separately it is not necessary.  In this instance, the decision about whether the witness could testify in the manner she proposed was a decision that was part of the judge's responsibility in controlling the proceedings before him or her.  In a fundamental way, it was no different from the decision to allow a witness to wear sunglasses.  The comparison was the appeal court's way of illustrating the question.  In the sunglass situation, the witness might have a medical reason for having them.  On the other hand, the glasses might be a mere fashion statement and therefore allowing the witness that privlege might effect the fairness of the trial.
The simple fact is that the mere invocation of the Charter is not necessarily a request for a Charter remedy.  In many instances, it is simply a matter of applying Charter principles to the interpretation of a statue or rule and there is no need for special notice to the other party.


Anyone who has done one or two of these applications can make a career out of doing applications for others

From other lawyers, I have recently heard unfavourable comments about organizations who promote themselves as expert in obtaining pardons.  At least one organization now offers, for an increased fee, an expedited service.  The simple fact is that a pardon application requires three basic processes.  Each must be completed correctly, else the whole process will be delayed.  The first is obtaining certified copies of the court charges, the second is a CPIC records check and the third is completion of the application form. 
In my recent blog about amendments to the Criminal Records Act, I commented about "anyone who has done one or two of these applications can make a career out of doing applications for others. This is evident in the significant growth of organizations that offer pardon removal services."

I don't know about who is following my blog, but after posting that entry, some woman with a toll-free number called me in response asking if I was interested in her doing a guest column.  I didn't bother calling back because I was pretty sure the guest column was going to be a promotion for some not-for-profit pardons organization. (The 'not for profit' claim is probably misleading because, no doubt, the person who runs the deal pays himself or herself a salary based the organizations net profit.)