The dilemmas of citizenship: Limitations on canadian legal rights

The Dilemmas of Citizenship: Limitations on Canadian Legal Rights

Barbara Perry, University of Southern Maine

Since the entrenchment o f the Canadian Charter o fRights and Freedoms, Canadian courts have been burdened with a disproportionate number of cases concerned with issues arising.from the newly introduced legal rights. However, the transition from the Canadian crime-control model to the American-style due-process model is far from complete. The rights of the accused are consistently deemed to be secondary to the aim of reinforcing the legitimacy of the criminal justice system. Canadians" legal rights will in fact remain limited as long as judges continue to decide cases on the basis o f harm done to the justice system, rather than indDiduals and groups.

INTRODUCTION

the Charter does not intend ... the paralysis of law enforcement

So spoke Justice Zuber in 1983. Subsequent experience has indeed borne out his opinion that the legal rights provisions of the Canadian Charter of Rights and Freedoms are not intended to interfere with law enforcement. On the contrary, the courts' interpretations of these rights have in fact facilitated the expansion of law enforcement powers, often to the detriment of individuals seeking to maximize their rights. As Zuber continues:

The Charter is not a vehicle for the promotion of efficiency - or even legal i ty- in law enforcement. Neither, however, is it a device for the coddling of criminals or the creation of a 'malefactors nirvana.' (Zuber 1983, R v. Altseimer)

The courts' treatment of the Charter's legal rights since then suggest that Zuber's advice has been taken seriously. Law enforcement and the administration of justice have been the coddled parties - certainly not the accused.

It is remarkable that so little attention has been paid to the question of legal rights in Canada since the inception of the Charter. In particular, there is a dramatic absence of sociological literature on the interaction between police activity and the Charter's due process provisions. What little work has been done on the Charter's legal rights provisions has come largely from legal scholars (Cohen 1984, 1985; Hogg 1990; Solomon 1983). Mandel's (1989) analysis of the 'legalization of politics' under the Charter is one of the few works to bring together legal and sociological perspectives on the Charter; but, An earlier version of this paper was presented at a joint sesssion of the Canadian Sociology and Anthropology Association and the Canadian Law and Society Association, Leamed Societies Conference, Carleton University, Ottawa, Ontario; June 7, 1993. I thank attending colleagues for their useful feedback. I am also grateful for the comments of Piers Beime.

18 Critical Criminology, Volume 7, Number 1, Spring, 1996

even here, there is only fleeting reference to the relationship between law enforcement and legal rights.

The failure to examine this relationship is perhaps less surprising in light of the more general scholarly neglect of policing in Canada. Currie, DeKeseredy, and MacLean (1990: 32) make the observation that 'there is a curious lacuna of criminological discourse which critically examines the contemporary policing institution in Canada.' In spite of the fact that Currie, DeKeseredy, and MacLean (1990) identify literature on police abuse of civil liberties, they make no specific mention of the way in which the aforementioned tension between public rights and police power is examined in the extant literature. The recent collection of essays on policing edited by McCormick and Visano (1992) is ample testimony to the failure to take seriously the impact of the Charter on policing. The majority of the contained articles focus on Canadian issues. Nonetheless, of the more than 700 pages of text, only five are devoted explicitly to this issue.

It is this void which the present paper seeks to address. It is intended as an initial exploration of the undeveloped question of the limitations on the newly introduced due process guarantees of the Charter. I argue that the Charter has had a marginal impact on police powers in Canada. In fact, the courts have consistently interpreted the Charter's legal rights in a way which protects the Criminal Justice System rather than rights claimants. Rather than move Canadian justice politics toward the American due-process model, Charter litigation on legal rights has further legitimated and entrenched the traditional Canadian crime-control model. This is also in line with the general character- istics of the Charter, in that it promotes passive as opposed to active citizenship in Canada. As much as the Charter explicitly excludes participatory social rights, it similarly undercuts procedural rights.

THE CHARTER AND CITIZENSHIP

Prior to 1982, constitutional politics in Canada was about relations and antagonisms among and between governments. The predecessor of the Constitution Act of 1982, the British North America Act, was concerned with the trinity of 'Peace, Order and Good Government' rather than questions of citizenship and popular participation. With the entrenchment of the Canadian Charter of Rights and Freedoms in 1982, constitutional politics would also come to involve the corresponding rights, duties, and tensions that characterize the newly defined relations between governments and citizens. In short, it transformed the nature of citizenship in Canada by formalizing the conditions of citizenship. For the first time in Canada's history, the Constitution was concerned explicitly with the relations between governments and people.

Little attention has been paid to the citizenship implications of the Charter. 1 The transformation of citizenship that the Charter represents is crucial to the overall project of hegemonic resolution: i.e., to the realignment of the status of citizens vis d vis the state. In seeking to understand the significance of the

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citizenship component of the Charter, I adopt Turner's (1990) notion of 'passive citizenship.' This conceptualization of citizenship is remarkably akin to the Gramscian notion of hegemony to the extent that both concepts presuppose the relatively unstable and unpredictable nature of struggles for consensus. In fact, Turner (1986: 104) explicitly argues that disputes over the terms of citizenship can lead to either further development or retrenchment:

it is not assumed that these universalistic norms of citizenship cannot be reversed, undermined, withdrawn or abandoned. Indeed it is assumed that any growth of citizenship provides a challenge to existing patterns of power and authority and therefore any growth of citizenship will be met with political struggles by dominant groups to preserve their advantages within the status quo.

Turner (1990) provides a useful typology that helps to characterize the implications of the rights entrenched in the Charter. Unlike Marshall's (1977) largely evolutionary conception of the development of citizenship, or Mann's (1990) 'top down' analysis, Turner's framework emphasizes the dynamics of the development of citizenship in the West. In so doing, Turner stresses both the historical specificity and the significance of popular struggle (or lack thereof) in the ongoing re-articulation of the status of citizen. Specifically, Turner (1990) draws a distinction between 'active' and 'passive' citizenship. Active citizenship refers to the expansion of citizen status in response to demands from below. In both process and outcome, it is essentially a democratic form of citizenship. Not only does it embody popular demands for change; it also extends the active participation of citizens into the institutions and practices of the new order. Active citizenship implies a 'full and dynamic notion of citizenship' in which the citizenry is fully engaged in the public life of the polity (Turner 1990: 206). In short, active citizenship is characterized by revolutionary struggle, and the opportunity for extensive public participation.

In contrast, passive citizenship implies that rights are 'handed down from above.' Whereas active citizenship implies popular participation in the attainment and exercise of citizenship rights, passive citizenship suggests limited public involvement in either context. Citizenship rights are defined according to the agenda of the state. In general, passive citizenship is associated with representative democracy which

recognizes the legitimate function of representative institutions, the courts and a welfare system, but there is no established tradition of struggles for citizenship rights ... citizenship remains a strategy for the regulation and institutionalization of class conflicts by public or government agencies rather than a set of practices which articulate popular demands for participation. (Turner 1990: 200)

Under conditions of passive democracy, the citizen is a subject, rather than an 'active bearer of effective claims against society' (Turner 1990: 200). Rights


of citizenship exist, but they are limited to the institutions of representative democracy, rather than participatory democracy.

The Charter is an ambiguous case in terms of its implications for the nature of citizenship. Given the limits to public participation and impact on the development of the Charter of Rights, the process was clearly passive (Perry 1992). The agenda and general structure of the Charter was set by the federal and (to a lesser extent) provincial governments; popular intervention by women, Aboriginal Peoples, and ethnic representatives altered the specifics,but not the substance, of the enumerated rights. To this extent, then, constitutional rights, identities, and obligations were handed down from atop Parliament Hill, so to speak.

The conception of political participation contained within the Charter is incomplete; it is not exemplary of participatory citizenship. If citizenship were merely defined as membership or recognition in a socio-political community, then perhaps the Charter could be said to enhance citizenship in Canada, to the extent that it does admit the constitutional identity of an extended range of individuals. However, 'citizenship' is a term that conveys much more than this. It also implies questions of participation and empowerment. It is on these dimensions that the Charter fails to impart a fully active citizenship. In Gramscian terms, the political and civil rights included in the Charter remain on the corporate level. In Turner's (1990) terms, they contribute to passive citizenship, in that they speak to traditional forms of representative rather than direct participatory democracy. As such, these narrowly-defined rights are indicative of passive politics: i.e., the expansion of a weak hegemony 'from above.'

Already at this juncture, the problem of the state is posed- but only in terms of winning politico-juridical equality with the ruling groups: the fight is claimed to participate in legislation and administration, even to reform these - but within the existing fundamental structures. (Gramsci 1971: 181)

The Charter thus fails to adequately address the three categories of citizenship rights noted by Marshall - civil, political, and social (Marshall 1950, 1977; Mann 1987; Turner 1986, 1990). The Charter institutionalizes only the f'trst two dimensions - and these weakly - in the form of S.7 to S.14, Legal Rights (i.e., due process rights) and S.3 to S.5, Democratic Rights (i.e., electoral rights). Social rights are excluded from the Charter; in fact, the Mobility Rights spelled out in S.6 actually threaten the equal provision of social-security provisions nation-wide (Perry 1992).

The absence of constitutionally-def'med social and economic fights substan- tially undermines the value of the enumerated rights, for example, the democratic and legal rights contained in S.3 to S.5 and S.7 to S.14 respectively. Of what use is the right to legal representation if one cannot afford an attorney, or falls into the large middle strata that is ineligible for legal aid, but lacking funds

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to hire alternative counsel? Of what use is the right to 'security of the person' without the related right to reproductive freedom? Of what use is the right to membership in the institutions of government if one is without the resources to mount an election campaign? Of what use is the 'freedom of association' without the corollary right to unionize? The lack of entrenched social and economic fights, therefore, limits the capacity of the Charter to empower citizens as full participants in the polity of the nation.

As a result, the nature of citizenship conditioned by the Charter lacks the immediate politicizing and democratizing effects stressed by Cairns (1988, 1991, 1992). The Charter promotes the liberal notion of individual freedom of choice - for example, through appeals to 'life, liberty, and security of the person,' and the assertion of the autonomy Of individuals vis d vis state intrusions. But it is a narrow understanding of freedom that denies the constraints imposed by ongoing relations of stratification and power. The Charter guarantees choice without providing the political pre-conditions for its realization.

CITIZENSHIP, LEGAL RIGHTS AND POLICE POWER

The participation assumed by Cairns ultimately tams on the right to litigate in the event of a violation of enumerated rights; consequently, 'empowerment' is little more than the legal standing of citizens -regardless of race, gender, age, etc. - to initiate this litigation - that is, to challenge the reach of governments.

The power to litigate is not insubstantial, although it is ambiguous, and insufficient for the realization of active citizenship. Thus, contrary to Mandel's (1990) arguments, rights litigation is not inherently 'bad;' it is an unpredictable arena for the continuation of struggle. As such, it can lead to progressive change.

Nonetheless, the potential of those legal fights enumerated in the Charter is limited. Specifically, in attempting to balance legal rights provisions with the goals and practices of law enforcement, the courts have thus far sacrificed these rights in favour of police, and especially in favour of protecting the justice system from 'disrepute.' In short, the passive nature of citizenship, as expressed by the absence of social rights in the Charter, is amplified by the limitations - substantive and interpretive - on the Charter's legal rights. This is particularly evident where the rights of suspects intersect with questions of police power. The qualifications imposed on the Charter's provisions severely curtail even these legal rights, thereby constraining their utility as indicators of citizenship. Specifically, the legal rights do little to rein in the powers of the police. Contrary to their initial fears, law enforcement agents have not had their hands tied by the Charter's due process 'guarantees.'

The police in Canada have traditionally represented a check on the recognition of legal rights of citizenship - it is in the nature of their task to confront issues of procedural fairness head on. Russell (1989) offers the caveat that:

22 Critical Criminology, Volume L Number 1, Spring, 1996

The extraordinary powers that are vested in the police to arrest, detain, search and use force are clearly required for the maintenance of freedoms that are essential to the welfare of the citizenry and its governing processes. But they are also invasive of those freedoms, and are an always-present threat to them and to the integrity of a free and democratic community. (Russell 1989: 143)

It is incumbent upon police to find and maintain that delicate equilibrium which balances their powers and obligations with those of the public they are intended to serve. Nonetheless, such a fragile balance is rarely achieved. In fact, the advantage rests with the police.

This disequilibrium exists in spite of the existence of procedural safeguards intended to protect the liberties of citizens. Even in the pre-Charter days, there was a common-law recognition of such due-process standards as citizen use of force in resisting unlawful arrests, and limitations on police powers of search and seizure. In fact, some of these common-law fights became codified in the Canadian Criminal Code, as in the S.26 prohibition of excessive force, or the S.29(2) right to be informed of reason for arrest. And, the 1960 Bill of Rights - the forerunner of the Charter- at least provided guidelines that theoretically limited police powers in the interests of citizen rights.

The problem is these limitations on police power have also been matched, if not surpassed, by procedural and structural enabling provisions that ultimately constrain the rights of citizens rather than the behaviour of police. The RCMP Act of 1970, for example, sets a very ambiguous mandate with respect to duties, without a corresponding statement of how those duties are then to be carried out; thus, the RCMP is assigned tasks:

in relation to the preservation of the peace, the prevention of crime and of offenses against the laws of Canada ... the apprehension of criminals and offenders. (RCMP Act 1970: Preamble)

In the absence of specified guidelines, the RCMP has broad latitude in determining how to carry out their endeavours.

Nowhere has this operational autonomy been more evident than in Canada's (albeit stunted) 'war on drugs.' Solomon's (1983) examination of the drug- enforcement powers of Canadian police officers clearly suggests that, in this realm, the rights of the accused are given little consideration. The Canadian justice system appears to maintain the conviction that drugs suspects are not worthy of the same due-process protections extended to other citizens. Thus, the Narcotic Control Act and the Food and Drugs Act, along with specific sections of the Criminal Code, explicitly allow for extended search and seizure procedures, arrest without warrant, and police immunity from criminal and civil liability.

The courts have tended to bolster these legislative initiatives, to the extent that they hold drug enforcers up to different standards than other law enforcement agents:

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Canadian courts have held that police officers engaged in drug enforcement need not fulfil several duties normally imposed upon arresting officers. In their attempt to facilitate drug enforcement, our courts have literally sus- pended several fundamental safeguards of a citizen's rights and freedoms. (Solomon 1983: 233)

However, Ericson also makes it clear that drug enforcement officers are not alone in their abilities to circumvent the due process rights of Canadian citizens (Ericson 1981, 1983; Ericson and Baranek 1982). Police absorb such safeguards into the routine structure of their work, such that 'procedural rules are for the use of law enforcement agents in their efforts at criminal control' (Ericson and Baranek 1982: 224). The police are in a position to structure and control not only their interactions with citizens, but with the formal legal system as well. The 'procedural rules' as spelled ou,t in the Charter, the Police Act, or elsewhere are enabling for the police rather than restrictive. The rules regarding 'due process' are thus for 'crime control.'

Law enforcement agents tend to develop means of either circumventing or adapting procedural rules. The Charter allows such flexibility of interpretation that officers can easily justify their questionable actions; they are given wide latitude to:

explain, justify and legitimate their actions with respect to what they think are the appropriate rules, and these rules are used in conjunction with their accounts to orient their actions . . . . Rules only become applicable in the process of developing an account. (Ericson 1981:16)

For example, Section 11 of the Charter holds that no-one shall be 'compelled to be a witness against that person in respect of the offence.' But this does not necessarily protect the public from police attempts to gain confessions at the time of arrest or detention:

The enabling elements of the law of confession which allow a variety of police tactics; the doctrine of confirmation by subsequently discovered facts; the fact that most accused plead guilty so that the interrogation and confession is not often questioned in court; and the many functions of interrogation beyond confessions admissible as evidence in court, all create a licence for detectives to use interrogations to their advantage. (Ericson 1981: 158)

The most infamous Canadian example of the general lack of reproachment is the case of RCMP 'wrong-doing.' Although over 400 cases of law-breaking were 'alleged or confessed,' not one RCMP officer was charged with an offence: 'no minister resigned over these issues and no official has been disciplined' (Tamopolsky 1980: 54). It is indeed ironic that the MacDonald


Report on RCMP law-breaking was handed down within four months of the Charter's proclamation. Contrary to the principles of the Charter, the report did not take seriously the threats to civil liberties. It concluded instead that a few misguided individuals misunderstood the meaning of civil liberties and democratic politics.

Disciplinary procedures for dealing with police wrong-doing are rarely invoked as restraints. Nor is public censure a dependable source of deterrence. Those who are most susceptible to the negative powers of the police - the disadvantaged and disenfranchised - are least able to defend their rights. Indeed, the cost of defending one's rights is often higher than the cost of relinquishing them. Indigent offenders, in particular, can hardly afford the resources necessary to protect their rights. Moreover, it is the rare defendant who will attract the support of civil liberties organizations in financing and pursuing the case, the even rarer attorney who is willing to uphold the rights without fee.

There is an abundance of practical examples of the tendency of law- enforcement agents to abrogate civil liberties. The case of the RCMP cited above is probably the most outstanding in Canada. But this is supplemented by dozens of daily occurrences that do not seem to warrant official recognition. Selective enforcement and surveillance according to race and class must figure prominently here. For example, the rate of arrest for alcohol related offences is consistently higher for Aboriginal than for non-Aboriginal offenders (Samuelson 1994). This fact is supported by York's (1990) Regina study that revealed differential treatment of Aboriginals involved in public order offences. Moreover, police use of deadly force against people of colour peaked with a rash of Toronto police shootings of minorities in the late 1970s and 1980s, and the killing of Aboriginal leader, J.J. Harper, in Winnipeg.

In more general terms, police use of deadly force resulted in 133 deaths between 1970 and 1984; in 1983 alone, high-speed police chases killed 22 citizens and 2 police officers (Taylor 1986). The RCMP - specifically the Canadian Security and Intelligence Service- continues to infiltrate and harass labour and peace organizations. Moreover, the routine surveillance of these and other organizations/individuals seriously tests the S.7 guarantees of 'life, liberty, and security of the person' (Taylor 1983; Torrance 1988).

Under the 1960 Bill of Rights, the police had little to fear in terms of limitations on their exercise of police powers - however broadly defined. While the Bill of Rights was in effect, the Supreme Court of Canada heard 30 cases related to human rights. In only six cases did the Bill affect the result; moreover, only once did the Court hold that a particular statute was inoperative in view of the Bill (i.e., the Drybones case). The Bill of Rights provided rules to safeguard the individual, but the courts did not take these provisions seriously. As early as 1861, for example, the Supreme Court had decided on the admissibility of improperly obtained evidence:

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It matters not how you get it; if you steal it, it will still be admissible in evidence. (R v. Leatham)

By 1970, under the Bill of Rights, little had changed:

the test to be applied in consideration whether the evidence is admissible is whether it is relevant to the matters at issue. If it is, it is admissible, and the court is not concerned with how the evidence was obtained. (R v. Wray)

The concern, therefore~ was with the validity of the evidence itself rather than with ensuring police compliance with procedural standards.

The Court's response to the right to counsel was slightly more ambiguous. In the case ofR v. Brownridge, Brownridge appealed his conviction on charges of refusing to submit to a breathalyzer test, on the basis that his right to counsel had been infringed. In an atypical fashion, he won his appeal. However, in a subsequent but analagous case, Hogan was less fortunate. He was pressured by police to submit to the breathalyzer without benefit of counsel, and subsequently charged with impaired driving. Hogan appealed on the same basis as Brownridge - that his right to counsel had been denied. Nevertheless,

The Supreme Court majority held that Hogan had the right to refuse to take the test until he had seen his counsel, but having taken the test before seeing counsel - even if such action were a result of police pressure - the evidence thus obtained was admissible against him. (Leary 1979: 57)

Under the Bill of Rights, due-process safeguards were promised in theory but rarely extended in practice. The Bill posed little deterrent to the 'extra-legal' activities of the police. Trudeau's proposal for a constitutionally-entrenched Bill of Rights, on the other hand, might mean the end of this relatively unfettered reign. Its provisions would be binding, and would in all likelihood provide the basis for significantly more citizen challenges. It is not surprising, then, that representatives of law enforcement were vehemently opposed to the entrenchment of the Charter of Rights. They feared that they would be hand- cuffed by the technical requirements of such a bill. They feared, for example, that the import of the US-style exclusionary rule would at the same time import the US crime problem, with its well-documented cycle of violence and blood- letting. This ahistoric and simplistic understanding of the relationship between due process and crime was manifest in the submission of the Canadian Association of Chiefs of Police to the Special Joint Committee on the Consti- tution:

In the United States, this rule has proven to be the greatest single roadblock to effective and fair law enforcement. It is of great concern to law


enforcement officers in that country... When murderers are set free because a police officer has made a minor mistake in the procedure he is required to follow, does society really benefit? The American experience has produced negative results. (Canadian Association of Chiefs of Police 1981: 2) 2

Ten years practical experience with the Charter has proven that fears of law enforcement agents have been misplaced. The Charter has done relatively little to place limits on the exercise of police power. On the contrary, it has perpetuated the expansion of police power at common law. Ericson (1983) only slightly overstates the case when he contends that

The CCRF as the supreme law or 'upper house' has little direct impact in protecting rights and freedoms even if it includes talk about 'guarantees' and 'entrenchment.' What it does is guarantee a framework of official discretion for the 'lower house,' for legitimating decisions about the restriction of rights in any given conflict ... It allows legal agents to get on with their routine social control tasks. (Ericson 1983: 53-54)

Hogg's (1990) contrary argument bears consideration. It is his contention that the legal-rights sections of the Charter have been given the broadest interpretation of all. He points to 'expansive' decisions like those providing that counsel be consulted prior to breathalyzer tests (R v. Therens); intoxicated suspects cannot waive their right to counsel (R v. Clarkson); suspects cannot be placed in an identification line-up without benefit of counsel (R v. Ross); some searches cannot be performed without counsel (R v. Strachan); police cannot use blood samples turned over by doctors (R v. Dyment); trial testimony cannot be admitted in subsequent retrials (R v. Dubois). However, with these notable and not insignificant exceptions, the dominant trend has favoured the values of law enforcement over the values of individual rights and liberties.

From his review of two exemplary S.8 and S.9 Charter challenges, Luther (1987: 218) concludes that such decisions

seem to display a disturbing willingness of the (Supreme) Court to expand the ambit of legal police action. This willingness.., may seriously undercut the important protections of S.8 and 9 of the Charter.

In both of the cases in question, the courts expanded the common-law powers of the police. The finding in each case was that, while the actions of the police were illegal, they were nonetheless 'reasonable' and therefore constitutionally legitimate. In R v. Dedman, the Supreme Court extended the common law to authorize random stops for the purpose of roadside breath tests. The rationale was that the common law provides ancillary police authority which is necessary to the execution of their duties. Similarly, R v. Landry facilitated the expansion of the common-law provision allowing forced entry for the purpose of arrest

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without warrant. The rationale this time was that the general right to enter should be an implied part of an authority to intercept communications as granted under the Canadian Criminal Code! In both cases, police interference with individual liberties was held to be reasonable and constitutional as long as police were acting pursuant to their duties. A more ambiguous and enabling interpretation could hardly be imagined. Even Justice Dickson (in dissent) recognized this danger in R v. Dedman:

With respect, the majority of the court departs firm ground for a slippery slope when they authorize an otherwise unlawful interference with individual liberty by the police solely on the basis that its is reasonably necessary to carry out general police duties.

The ambiguity of the courts' stance on the protection of civil liberties is also highlighted in their treatment of the exclusionary rule. According to S.24(2) of the Charter of Rights:

Where in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

As an aid to interpreting this remedy section, the court has settled on three criteria that must be considered: the effect of the illegally-obtained evidence on the faimess of the trial; the seriousness of the violation; and the effect of exclusion on the administration of justice (R v. Collins). While these criteria serve to standardize the process of decision making, they have not been effective in standardizing the decisions themselves. The courts still leave themselves considerable discretionary space with which they can rationalize virtually any police misconduct. Young (1991: 304) contends that

The current uncertainty means that the respective fights and obligations of police and individuals are being determined on a case-by-case basis through the unpredictable and open-ended application of the Charter's exclusionary rule. Both the state and the individual will find out if their respective rights and/or powers are worthy of protection only by an after-the-fact judicial inquiry.

Cohen's (1984, 1985) surveys of the impact of the Charter on police powers illustrates the uncertainty that characterizes this area. He reveals that the approach to the Charter has yielded conflicting and contradictory signals. While the courts called very early for a 'large and liberal construction' (Hunter v. Southam), subsequent decisions have been as likely to be 'liberal' in allowing


police violations to be 'liberal' in protecting individual rights. There have been cases wherein police abuses have been censured, in keeping

with the recognition of suspects' constitutional rights. Estey's concurring opinion in R v. Therens, for example, rejected illegally-obtained evidence, arguing that, to do otherwise, 'would be to invite police officers to disregard Charter rights of the citizen and to do so with an assurance of impunity.' Wilson cited Estey's argument in her majority decision in R v. Clarkson, thereby excluding Clarkson's intoxicated confession on the basis of a police violation of S.10(b) right to counsel. Lamer further chastised police for their treatment of Collins:

the administration of justice would be brought into greater disrepute.., if this court did not exclude the evidence and dissociate itself from the conduct of the police in this case which.. , was a flagrant and serious violation of the rights of an individual. Indeed we cannot accept that police officers take flying tackles at people and seize them by the throat when they do not have reasonable and probable grounds to believe that those people are either dangerous or handlers of drugs. (R v. Collins)

Dickson delivered an equally harsh indictment of the excessive zeal of police officers in R v. Genest:

Overall, in my opinion the search in this case was a serious breach ofS.8. Not only did police have a facially defective warrant, they used an excessive amount of force to carry out the search. Well-established common law limitations on the powers of the police to search were ignored. No attempt was made to justify the amount of force used. There is strong reason to believe that this search is part of a continuing abuse of the search powers, since it follows so closely the pattern set the previous month.

In spite of the 'well-established common-law limitations' to which Dickson refers, and in spite of 11 years experience with the Charter, police continue to violate the 'guaranteed' civil liberties of Canadian citizens. And, in contrast to these above-mentioned cases that appear to 'punish' police abuses, there is also a litany of cases decided in favour of the police. That is, the courts have simultaneously condoned police infringements on legal rights by finding in their favour. Does Scollin not trivialize the due-process provisions of the Charter when he makes the facetious comment that 'It would be unrealistic to expect an investigator to immediately run around trumpeting "Charter" warn- ings to the wind and to everybody who happened to be there' (R v.Nelson). Why would this be unreasonable? Why should police not be expected to take seriously their duty to inform citizens of their rights as soon as possible? Barring any immediate threat to their life or the existence of evidence, police should be expected to educate the public about their precious rights.

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It is not surprising that police continue to overstep their rightful bounds of authority. I am not suggesting that there is some conscious conspiracy to thwart the civil liberties of the nation. The already difficult job of policing is made more difficult by the inconsistent messages sent by the courts. It is this structural feature of the administration which is enabling for police. Wilson's concurring statement inR v. Strachan is educative here. Wilson was apparently offended by the fact that Strachan's right to counsel had been violated. As a result, she agreed that the subsequent search was unconstitutional and unreasonable. For her, S. 10(b)'s guaranteed right to counsel stands as one of the most critical of all Charter provisions, such that 'a continuing denial of that constitutional right during an otherwise reasonable search must prima facie render the manner in which the search was conducted unreasonable.' Never- theless, Wilson proceeded to exonerate the police wrong-doing by concluding that 'the admission of the evidence in this case would not bring the administration ofjusticeinto disrepute.' In other words, Strachan's rights were grievously violated, but this was not acceptable grounds for court redress!

Lamer followed a similar logic in his majority decision in R v. HamiU and R v. Sieben. Both cases questioned the validity of police searches carried out under writs of assistance rather than search warrants. Lamer found the searches to be unreasonable, but nonetheless constitutional: i.e., not serious enough to bring the administration of justice into disrepute. The rationale in expressed in R v. Hamill reflects my previous argument about the courts' lack of concern for the recognition of procedural fairness in drug-related cases.

It is worth underlining, too, that this is a narcotics case where, as the Court of Appeal observed, special enforcement techniques have been utilized throughout the world.

It is enabling decisions like these that allow law-enforcement agents the scope to infringe upon the Charter's liberties. Given the ambiguity of the Charter itself, the courts have plenty of discretion in interpreting the limits to be applied to the powers of both police and citizens. Acknowledging this inherent feature thus helps to understand the otherwise contradictory finding in R v. Simmons. Here was a case in which Simmons claimed violations of S.8 (unreasonable search and seizure), S.9 (arbitrary detention) and S.10(b) (right to counsel) in the context of a border search. In a majority verdict, Dickson held that the criteria for reasonable searches did not apply to customs searches; that Simmons was detained but also denied her right to counsel; that the subsequent body search was therefore unreasonable; and that the unreasonable search was not justified under S. 1. In spite of these findings, Dickson goes on to effectively absolve the customs officers of wrong-doing by admitting the evidence obtained from the search. The logic he applied, however, is faulty:

In some cases the harm to the integrity of the judicial system resulting from excluding the evidence will be so great that exclusion and not admission will


bring the administration of justice into disrepute. This would be the case if evidence necessary to substantiate a charge were excluded on the basis of a trivial Charter violation ... Although the breach of the appellant's S.10(b) and S.8 rights were not strictly speaking trivial, in my opinion.., this is the kind of case where the evidence should be admitted. (R v. Simmons)

This brings us back to the pre-Charter days when 'It matters not how you get it' (R v. Leatham); if it is relevant, 'it is admissible and the court is not concerned with how the evidence was obtained' (R v. Wray). Such a rationale is not likely to provide effective brakes on police practice with respect to unreasonable search and seizure. The concern in cases like this is with ensuring the validity of the evidence moreso than the validity of misconduct that uncovered it. That the courts are conscious of this trend is evident in a revealing statement by Lamer:

it is generally not proper for a court to exclude evidence with a view to controlling the police. The main reason for this is that the price of exclusion is not paid by the police, and that consequently, from the police's point of view, exclusion generally would amount to no punishment at all. The public and the victim's of the offence are those who are affected by the exclusion. (R v. Duguay, Murphy and Sevigny)

How else are rights to be systematically protected if not by enforcing proper and constitutional police procedure? It is in our interaction with police that the question of due process most frequently arises. It is, therefore, incumbent upon the courts to oversee the discretionary exercise of the sweeping powers wielded by police, to mediate the fragile balance between this exercise and our fundamental freedoms.

What many of these above-mentioned decisions reveal is that the courts are in fact less concerned with protecting the integrity of the person than with protecting the integrity of the justice system itself. Again, this idea is mandated, in part, by the provisions of the Charter. S.24(2) demands that the key remedy forrights violations- exclusion of evidence- be invoked only if ' the admission of it in the proceedings would bring the administration ofj ustice into disrepute.' This proviso has become a convenient crutch for the courts in that it has been used to justify a range of 'unreasonable' police activities (eg., see R v. Simmons; R v. Strachan; R v. Hamill). As Mandel (1990: 143) argues, S.24(2) has been particularly useful as a protective mechanism:

Not preventing police misbehaviour, period, but preventing police misbehaviour from soiling the purity of the judicial process, from damaging its reputation.

As stated previously, the due-process guarantees of the Charter are for crime control. The Charter has become an effective document for substantiating the Canadian tradition of crime control. Hagan and Leon (1978) argue that societal responses to crime can be conceptualized according to two ideal types. The

Barbara Perry 31

due-process model is concerned with procedural safeguards intended to protect suspects from arbitrary and unjust actions by the state. In contrast, the crime- control model holds that civil liberties are meaningless in an unordered society. The emphasis, then, is on the maintenance of social order, at the risk of sacrificing individual rights if necessary. The former stresses a commitment to personal rights, the latter a commitment to law and order.

S.24(2) is not the only section to encourage the courts to adhere to a crime- control rather than due-process perspective. The Charter is replete with phrases heralding the importance of order as against liberties. S.1 speaks of 'such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.' S.7's afftrmation of the right to life, liberty, and security of the person is diluted by the provision that this can be over-ridden' in accordance with the principles of fundamental justice.' In other words, the point of contention is to be the effect of police wrong-doing on the system rather than on citizens.

Even where the courts have found for individual citizens, such findings have been given a peculiar twist. In R v. Collins, the Supreme Court held that:

S.24(2) is not a remedy for police misconduct... The purpose of S.24(2) is to prevent having the administration ofj ustice brought into further disrepute by the admission of evidence in these proceedings. This further disrepute will result from the admission of evidence that would deprive the accused of a fair hearing, or from judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies.

The benefits accruing to citizens, then, are only an indirect outcome of the courts' determination to protect their own sterling image. 3 This sentiment is echoed in Therens, wherein Le Dain proclaims that 'the right to counsel is of such fundamental importance that its denial in a criminal law context must prima facie discredit the administration of justice.' A place exists for the protection of Canadians' legal fights, but this is to be contextualized within, indeed subordinated to, the interests of the social and especially the legal order. That is, the rights of the people are ancillary to the goal of protecting the visage of justice.

There is no shortage of examples to support this contention. In R v. Rothman, it was clear how Lamer perceived the relative (im)balance between 'the protection of the innocent against conviction; and the protection of the system itself by ensuring ... the repression of crime through the conviction of the guilty.' Estey concurs: 'The adminstration of justice will be brought into disrepute if the conduct of the police tends to prejudice the public interest in the integrity of the judicial process' (R v. Rothman). Zuber is of like mind:

The protection of liberty is to be carried out with an eye cast toward the reputation of justice and the legitimate needs of a free and democratic society. (R v. Altseimer)


And, as a final example, consider Seaton's arguments in R v. Collins:

Whether the administration of justice is brought into disrepute should be viewed through the eyes of the community at large, including the policeman, the law teacher, and the judge. . . The major lesson to be learned from the Canadian past and from the experience of others is that the administration of justice will notbe held in high regard ifevidenceis regularly excluded. Cases in which evidence should be excluded will be rare.

The test of disrepute in this case - as in many others - is the effect of the proceedings on community perceptions of the legal order, not on the individual. Seaton is concerned with how the 'reasonable' citizen would interpret the police misconduct. Thus, the standard to be applied is the interest in law enforcement, rather than the protection of individual liberties. 4

CONCLUSION

Cohen (1985: 274) provides the important reminder that, in examining the impact of the Charter' s legal rights provisions,'what is involved is nothing less than the relationship between the citizen and the police, a relationship which in turn defines the nature and the limits of freedom within society.' What does the foregoing analysis imply with respect to the nature of citizenship in Canada? I suggest that it lends support to the contention that the Charter is indicative of the Canadian trend toward passive citizenship. The Charter fails to effectively circumscribe the considerable powers of Canadian law-enforcement agents. Just as the Charter was designed and implemented by a narrow state-led contingent, just as constitutional politics excludes popular participation, so too does the Charter favour state interests in law enforcement over the popular interests of its citizenry. In so doing, it fails to adequately extend this second precondition for full citizenship - the realization of legal rights.

There are liberal critics of the Charter who fear the destabilizing potential of a 'rights ridden society.' Pocklington (1982) and La Framboise (1982), for example, argue against the inflation of rights. They contend that the ingrained sanctity of rights associated with an entrenched Charter disrupts the process of political negotiation:

Those who advance political claims under the aegis of human fights, believing that their causes are sanctified by the most powerful of all moral considerations, are in no frame of mind to negotiate ... The human rights perspective tends to extend political controversy beyond their plausible limits and thereby inhibits reasonable political debate. (Pocklington 1982; 85)

If a generalized rights discourse threatens to disrupt the inequitable process of liberal bourgeois politics, this is not cause for criticism but for praise. That is,

Barbara Perry 33

rights discourse is a positive development to the extent that it motivates pressures that challenge the boundaries established by liberalism. It is the 'plausible limits" imposed by the particular form of passive citizenship rights that must be extended and superseded.

It is this positive aspect of the Charter that Mandel (1985, 1990) and Glasbeek and Mandel (1984) fail to acknowledge. Manders thesis of the 'legalization of politics' is a negative view of rights, in which rights politics have no progressive potential. Rights discourse always feeds into the 'legalization of politics;' it is locked into legal reasoning; it cannot, therefore, inform political activity beyond the court-room. Indeed, if oppositional activity were restricted to rights litigation, it would contribute to the legalization of politics. This is particularly true in light of the argument advanced herein. Charter litigation has had a marginal effect on the exercise of police powers and the attainment of civil rights redress. But the politics of rights is not and should not be so confined:

we are more likely to arrive at a positive conception of rights strategies if we see them as part of the wider field of hegemonic political practices. Whilst rights-in-isolation may be of limited utility, rights as a significant component of counter-hegemonic strategies provide a potentially fruitful approach to the prosecution of transformatory political practice. (Hunt 1990: 18)

The key to progressive political transformation is not to rely solely on legal battles around rights. Rights litigation must become part of a comprehensive strategy that absorbs and supersedes the liberal hegem onic formation-in short, it is necessary to engage in counter-hegemonic strategies. Although the narrowly-defined rights contained in the Charter do not contribute to the immediate realization of democratic participation in the Canadian polity, they provide the foundation for a hegemonic construction oriented toward the expansive development of social, economic, and participatory rights. The strategy would involve the exploitation of the logic of rights discourse to transcend the specifically liberal form of the Charter.rights.

Consider Herman's (1993) analysis of the gay/lesbian rights movement in Canada. Her research reveals that the discourse of legal rights provided a 'wedge' for expanding the debate around gay rights beyond that narrow legal terrain into questions of identity. In line with my contention, Herman (1993: 33) states that

The acquisition of formal rights was always one strategy among many. Gaining such rights was viewed as a necessary step, as much a symbolic hurdle as a material benefactor.

Regardless of the success or failure- an important caveat to keep in mind viz. legal rights-Charter litigation remains important for mobilization of particular


movements and coalitions of movements. It helps to engender a fights consciousness with the potential of transcending the established boundaries.

On the abortion issue, for example, pro-choice activists rely in part on arguments based on S.7"s 'right to life, liberty, and security of the person.' However, they also seek to extend the debate to encompass the question of the reproductive rights of women. Canada's Aboriginal peoples press beyond the rights recognized in the Charter in an attempt to attain the collective rights of self-determination and self-government. The July 1992 agreement in principle on the constitutional affirmation of the (as yet undefined) right to self- government attests to the progressive potential of such an expansive strategy.

The Charter's discourse of rights, then, provides some impetus for collective mobilization around individual rights, as well as broader struggles for collective and/or social rights. The outstanding feature that the two examples cited above share in common is that they have not restricted their political activities to the field of rights litigation. Their rights claims took on a number of expressions, ranging from parliamentary lobbying, to extended research, to public education all in an attempt to 'construct, in Gramscian terms, "good sense" from "common sense" and in this way to prioritize or valorize those elements or features which are new' (Hunt 1990: 6).

NOTES

1 The major exceptions here are Cairns (1988,1991, and 1992), Caims and Williams (1982), and frequent but passing references by Whitaker (1992). Cairns, in particular, will figure prominendy in the present discussion.

2 Sce Mandel (1990) for a refutation of the presumed negative results arising from such decisions a s the Miranda ruling.

3 This argument is further substantiated by the 1985 case in Ontario wherein an attorney was convicted of "scandalizing,' due to the fact that his 'blatant attack on all judges of all courts ... was likely to lower the authority of the court and its respect in the public eye' CLipset 1990).

4 Aside from what this says with respect to the balance between individual and community interests, Seaton's remarks raise the question of how the judiciary is to measure community shock. Are 'the policeman, the law teacher, and the judge' typical Canadians? Do they or can they estimate or reflect the values of those most likely to be affected by police wrong-doing - i.e., the disadvantaged citizens of Canada?

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The dilemmas of citizenship: Limitations on canadian legal rights