October 9, 1997
Peter Hogg, Scholar in Residence, Blake Cassels & Graydon and Professor of Law, Osgoode Hall Law School
Donny Peterson, Proprietor of Heavy Duty Cycles and Member of the Para-Dice Riders Motorcycle Club
THE PARA-DICE RIDERS CHARTER CASE AGAINST POLICE ROADBLOCKS
Chairman: Gareth S. Seltzer, President, The Empire Club of Canada
Head Table Guests
Willis Blair, Secretary and Director, The Empire Club of Canada and a Member of the GTA Mega City Transition Team; Michael Le, Honour Student, Central Commerce Collegiate Institute; Rev. Kim Beard, Rector, Christ Church, Brampton and a Director, The Empire Club of Canada; Robert Girvan, Barrister and Solicitor and Counsel to the Para-Dice Riders Motorcycle Club; Alan Borovoy, General Counsel, The Canadian Civil Liberties Association; His Honour Justice Charles L. Dubin, Counsel, Tory Tory Deslaurier and Binnington and former Chief Justice of the Ontario Court of Appeal; Sir Stephen Sedley, Justice of the High Court, England and one of England's foremost constitutional lawyers; Marilyn L. Pilkington, Dean, Osgoode Hall Law School, a Past Member of the Canadian Human Rights Tribunal and Author of numerous well regarded legal papers; and Edward Badovinac, Professor, Electronics Telecommunications, George Brown College and a Director, The Empire Club of Canada.
Introduction by Gareth Seltzer
Today we have a great opportunity to hear from two very articulate citizens on both the strength and the flaws of the Charter of Rights and Freedoms in Canada.
It's been said that democracy is the art of running a circus from the monkey cage. It is difficult indeed to find a balance between individual rights and order. And the vehicle to guide that order bears the weight of an entire nation. As Charter challenges appear frequently in our courts, we must ask ourselves, are we as a nation more equipped as self-government and justice or impaired by an imperfect document? On might argue that we have yet to find the answer.
Today, to illustrate both the character of the Charter and the use of the Charter, we have two very different guests. Today we will hear from Donny Petersen, who owns and operates one of North America's most well regarded Harley Davidson custom shops and has been a Harley enthusiast since childbirth. As a member of and spokesman for the Para-Dice Riders Motorcycle Club, he is perhaps a surprising candidate to grace our podium. I do know that he went to special lengths to dress up for our forum! Mr. Petersen has spearheaded a legal challenge with the club, based upon the terms of the charter, challenging the right of the police to arbitrarily detain individuals without due cause under law. It's an issue that will have likely a broad impact on civil liberties across Canada and perhaps elsewhere and an example of the function of the Charter.
Before Mr. Petersen speaks, I am honoured that we will first hear from Mr. Peter Hogg, Canada's foremost constitutional expert, being cited twice as many times as any other author at the Supreme Court of Canada. Mr. Hogg is unquestionably the most highly regarded professional in this field and has been called upon to provide constitutional counsel here in Canada and abroad at the highest level of governance. Mr. Hogg has received numerous awards and has been recognised nationally for his legal papers and undoubtedly today's prestigious head table and guests in our audience are drawn by Mr. Hogg's attendance here as a guest of the Empire Club of Canada. Mr. Hogg, a recipient of the Teaching Award in Excellence at Osgoode Hall among many other awards of merit, will address the most fundamental of issues with respect to the Charter--that is, "is it a good thing?" I can think of no finer manner in which to initiate this discussion than to hear from this scholar. Please welcome to the podium, Mr. Peter Hogg.
The title of my talk today is Democracy and the Charter of Rights. I want to start by posing a question: "Is the Charter of Rights a bad thing?"
The view that the Charter of Rights is a bad thing is commonly based on an objection to the legitimacy of judicial review in a democratic society. The objection is this. What the Charter does is to confer on judges the power to strike down laws that have been made by the duly elected representatives of the people. Since judges are neither elected to their offices nor accountable for their actions, this power is not a legitimate one in a democratic society.
Now I should point out at this stage that a majority of Charter cases do not involve challenges to actual laws. Most of the cases are challenges to the actions of the police, usually complaining about a denial of the right to counsel or an unreasonable search and seizure or an arbitrary arrest or detention. That is the complaint of the Para-Dice Riders that Donny Peterson will be talking about after me. These kinds of cases do not raise an issue of democracy because the court is not reviewing the policy set by Parliament or the legislature when it reviews the actions of an individual police officer. So it is not surprising to find that the challenges to individual actions by police are the most common kind of Charter complaint, and the one that has the highest success rate.
But since the adoption of the Charter of Rights in 1982 there have been 66 cases in which the courts have struck down a law that was enacted either by Parliament (43 laws) or by a provincial legislature (23 laws). It may seem surprising that more federal laws have been struck down than provincial laws, especially as with 10 legislatures there are many more provincial laws than federal laws. The reason is that the field of criminal law is a federal responsibility in Canada (it is a state responsibility in the United States and in Australia) and the criminal law is more likely to impinge on individual civil liberties than the civil laws that are passed by the provincial legislatures. I won't list all the laws that have been stuck down, but just mention some at random to give you a flavour of the activism of our courts, particularly the Supreme Court of Canada:
• Many provisions of the Criminal Code, including the therapeutic abortion provisions, the felony murder provisions, the habitual criminal provisions, the automatic committal of persons found not guilty by reason of insanity, the rape shield provisions restricting the cross-examination of rape victims, the offence of living off the avails of prostitution, the offence of wilfully publishing false news (Zundel's victory), the jury selection provisions, the bail provisions, the rule that intoxication is not a defence, the offence of loitering in public places frequented by children;
• Various provisions of the federal Elections Act, including the disqualification of judges and prisoners, the prohibitions of third-party expenditures during an election and of advertising and polling just before an election;
• The search and seizure provisions of the Competition Act and the Income Tax Act;
• The refugee determination provisions of the Immigration Act;
• The federal Lord's Day Act prohibiting work on a Sunday;
• The federal prohibition of tobacco advertising;
• Quebec's law requiring children of Canadian citizens to go to French schools;
• Quebec's law requiring all commercial signs to be solely in French;
• Ontario's requirements for religious instruction in schools;
• Ontario's censorship law;
• The rules of the Alberta Law Society barring out-of-province law firms from establishing in Alberta.
This short and incomplete list is enough, I think, to give some reality to the concern that our courts have become a significant branch of the government without any of the safeguards of democratic election and accountability.
However, now I want to add another fact, which is much less well known. I have traced the legislative sequels to each of the 66 decisions in which a law was struck down on Charter grounds, and I have found that in two-thirds of the cases (44 of 66) the decision was followed by the enactment of a new law. Sometimes the new law was narrower than the old one, because the Court had said that the old law was more restrictive of individual liberty than it needed to be to accomplish its purpose, and what was needed was a narrower law (e.g., tobacco advertising and sponsorship). Sometimes the new law was broader than the old one, because the old law conferred a benefit (e.g., unemployment insurance) and excluded a group from the benefit (e.g., persons over 65) who had a constitutional equality right to be included; the new law included the excluded group. Sometimes what was needed was a fairer procedure (e.g., to determine who are legitimate refugees, to search for and seize evidence of income tax evasion).
My point is this. It is very rare that the constitutional defect just cannot be remedied at all, so that the legislative project has to be abandoned. In the 22 cases where the law was not re-enacted, the law was either repealed or no legislative sequel followed. But, even in those cases, there was usually a solution available to the government, and it was the deliberate choice of the government to abandon the old law that had been struck down.
Why is it usually possible to re-enact the substance of a law that has been struck down because it violated the Charter of Rights? There are three features of the Charter of Rights that make this possible.
One is the override power of s.33, which enables Parliament or a legislature to overcome the Charter of Rights simply by inserting a notwithstanding clause in the new law. That radical power has turned out to be unimportant, because governments have been reluctant to use it, except for Quebec, which used it to protect its language-of-signs law.
The second is the limitation clause of s.1 which provides that the rights may be limited by a law that is a "reasonable" limit on the right, and one that is "demonstrably justified in a free and democratic society." Whenever a court strikes down a law for breach of the Charter of Rights, the court has to find not only that the law infringes a guaranteed right but also that the law is not a reasonable limit that is demonstrably justified in a free and democratic society. In making the latter finding, the court will give reasons and those reasons usually indicate what kind of alternative law would be a reasonable limit in a free and democratic society. That alternative law is available to the legislative body.
The third feature of the Charter of Rights that makes it possible to re-enact invalid laws is the fact that many of the rights are expressed in qualified terms. For example, section 8 guarantees the right to be secure against unreasonable search and seizure. Section 9 guarantees the right not to be arbitrarily detained or imprisoned. Section 12 guarantees against cruel and unusual punishment. When a qualified right is infringed, the invalid law can usually be replaced by one that is not unreasonable, or not arbitrary, or not cruel and unusual, without abandoning the main point of the invalid law. In the unreasonable search and seizure cases, for example, which have been numerous, the Supreme Court of Canada has ruled that a search and seizure is reasonable if it is authorised by a search warrant issued by a judge on the basis of some evidence. This ruling has enabled Parliament to repair a number of defective powers of search and seizure.
It is because of these three features of the Charter of Rights that governments have so often been able to overcome a decision striking down a law on Charter grounds. I like to think of the decision and its legislative sequel as constituting a dialogue. The effect of the decision is to cause a public debate in which the Charter values play a more prominent role than they would have done if there was no judicial decision. The legislative body is then in a position to devise a response that is properly respectful of the Charter values that have been identified by the court, but which still accomplishes the social or economic objectives that the judicial decision has impeded. To be sure, the court decision may have forced a topic onto the agenda of the legislative body that the legislators would prefer not to have dealt with. And, of course, the terms of the new law will have been powerfully influenced by the court's decision. These are constraints on the democratic process, but the final decision is the democratic one.
My conclusion is that the Charter of Rights is not such a bad thing. It tends to act as the catalyst for a two-way exchange between the judiciary and the legislature on the topic of civil liberties, but it rarely raises an absolute barrier to the wishes of democratic institutions. In the end, if the democratic will is there, the legislative objective will still be able to be accomplished, albeit with some new safeguards to protect individual liberty. The Charter of Rights does not block the democratic will, and the democratic objection to it cannot be sustained.
Good afternoon. While we were singing "O Canada," I was thinking that to be born and/or to live in this country God has given all of us two aces in the poker hand of life from the get-go. It is within this context that I wish you to view my ensuing comments. By the way, I don't normally dress this way (in a suit) but that will teach me as I have left my speech in my black leather jacket at home.
I have been a Para-Dice Rider for 26 years and I must say that Para-Dice Riders are unlikely Charter candidates. No one is going to feel sorry for a motorcycle club launching a suit against a police department. This is the bad guys against the good guys. But we have been painted into a corner. The only problem is that we are not holding the paint brush. We only want access to a property that we own but are denied free entry to by the police. This is all we want now and it's all we have wanted all along. We do not want to hamstring the police from pursuing their legitimate duties. We are not interested in changing laws or setting case precedents. We do not want to change the law here in Canada or in the United States. All we want is to get into our property without being blockaded.
Here is how this relates to you and the rest of North America. There is no case law either here or in the U.S.A. dealing with how police are able to stop and monitor groups of people. Police departments everywhere use roadblocks to monitor and arbitrarily detain citizens including motorcyclists. As this case winds its way into the Ontario Court of Appeal next spring and then on to the Supreme Court of Canada, new law is going to be enshrined on how police deal with different groups that thread their way through our society and how police deal with divergent groups such as Aboriginals or congregating union members such as those at the Queen's Park demonstration last year. There are hundreds of examples that we could draw upon.
Lets get to the heart of the case, the Para-Dice Riders are involved in. We, by that I mean the club members, purchased a Power of Sale Marina on the southern shore of Lake Scugog in the tiny hamlet of Caesarea a few miles east of Port Perry in 1990. This Marina was purchased to be a recreational spot for our club members, their families and invited guests. It is not operated as a business. There are only two roads that lead into the hamlet and they dead-end there. About 70 to 90 police officers will congregate here and operate roadblocks with the express purpose of stopping our membership and their guests. Overhead, sometimes a small police plane will circle above the Marina. At other times it will be a police helicopter. On the lake in front of our facility two police boats, one from Durham, the other from the OPP, will operate in order to stop everyone leaving or entering our Marina. In Port Perry, at the local docks, one or two police cars will stop any sneaky bikers from attempting to gain access to the Marina by water.
The roadblock, more correctly described as a blockade, is comprised of RCMP down to local departments. Officers from as far away as Sudbury and Hamilton have been observed as well as visiting American police observers. There are uniformed officers with their patrol cars and there is a fully dressed SWAT team carrying weapons that range from four-foot truncheons to automatic weapons as in machine-guns. Plain-clothes officers seem to direct the actions of the rest. There is a ram vehicle which is an old Brinks truck fitted with an hydraulic ram. There are dogs and their handlers, paddy wagons and a weapons truck. All of this is for such nefarious crimes such as failure to sign your ownership or having a scratch on your helmet.
You'll read ongoing items in the media such as 130 Para-Dice Riders were charged last weekend with various offences. The media propagates this type of biker mythology and the legend of badness grows. I've told you the types of crimes and now I'll let you know that the vast majority of these charges have been either withdrawn by the Crown Prosecutor or have been put into limbo awaiting the outcome of our constitutional Charter challenge. Now, if you are riding a Harley Davidson, you are pulled over into a vacant lot to be processed. Likewise if you are in a car or truck and affect biker lifestyle dress. But if you are on a Yamaha motorcycle you are waved through as you are if you appear to be "normal."
You're pulled in. What happens next? After surrendering your documentation, you are processed for any perceived infractions. Your demeanour is written down as is whom you are hanging around with. And you are still photographed as well as videotaped. During our trial, I realised that it is unlawful for police to photograph or videotape you while you are being arbitrarily detained. We tried to roll this issue over into our trial with the able assistance of our lawyer Robert Girvan. The video evidence of the police was already there as were our videotapes showing this unlawful behaviour. Their witnesses were already there as were ours and this was all the same evidence that would allow a decision on both issues--the detainment and the picture taking while being detained. Well Judge Ferguson ruled that a separate trial would have to be held to decide the picture-taking issue! Our legal advice indicated that in the worst-case scenario, the cost could approach $300,000. I know bikers are supposed to be rich but the Para-Dice Riders do not have this much money. We would lose our properties and more under this scenario. So, we were forced to drop it and continue to fight the arbitrary detainment challenge.
Let's back up a bit. We wanted to be accepted by the community and to co-exist in a friendly way. Before any thought of going to court we arranged a meeting with the Durham Police to conciliate our problems. It was attended by a Superintendent and five or six other officers. I felt that we were developing a rapport and left confident that once the police addressed their concerns for public safety the roadblocks would come down. After all the Superintendent indicated if there was no trouble, the police resources would be utilised elsewhere. Well, the roadblocks continued unabated.
We then went for an injunction to stop the roadblocks but this became a constitutional challenge. The ante kept getting raised and not by us. We even tried to call it off with the concession they give us uninterrupted access to our Marina at the beginning of the lower court trial. "No way," they said. So here we are determined to go on. Just as they are.
I could go on a long time about this subject and what has happened to us but I'll end my talk by discussing whether there is justice in Canada. If you have access to wealth or a Pro Bono lawyer, if you are patient and have seven years to deal with this instead of being out making a living, if you are stubborn and if you have courage (going up against a powerful institution like the police can be detrimental to your future well-being), well then it is true there is access to justice in Canada. However, if you don't have $300,000 to challenge unlawful photography while being detained then in this case access to justice is denied.
Thank-you very much for listening to me today. It has been very educational for me. It can be very strange where you wind up in life. Thank you, again.
The appreciation of the meeting was expressed by Gareth Seltzer, President, The Empire Club of Canada and Vice-President, Guardian Capital Inc.