Is the Charter an Effective Tool for Social Change?

by Shelley Bentley

Joel Bakan from the UBC Faculty of Law addressed the members of the Gay, Lesbian, Bisexual and Transgendered Issues Subsection and offered a thought-provoking analysis of the effectiveness of the Charter as a tool for social change. His recently published book, “Just Words: Constitutional Rights and Social Wrongs”, analyzes these issues in more depth.

He identified three broad questions which shape the debate about the effectiveness of the Charter:

• Is it possible to use the Charter to persuade judges to do the right thing?
• Do courts have sufficient remedial power under the Charter to make any substantive change?
• Even when litigants are unsuccessful, is there a symbolic/public education value to be gained from Charter litigation?

Persuading Judges to do the Right Thing
Mr. Bakan suggested that judges can be expected to render decisions which are consistent with dominant, acceptable social opinion. They are inherently conservative and, in Mr. Bakan’s opinion, it is the real exception where a judge will draw conclusions or consider more radical or unacceptable social opinion. He used the Supreme Court of Canada’s opinion in the Egan case to illustrate his point. This case dealt with the right of a same sex partner to receive spousal pension benefits under the Old Age Pension. He said that although three judges expressed opinions about the origins or cause of sexual orientation and noted existing variations of opinion about traditional family forms, they did not venture beyond acceptable notions.

Mr. Bakan argued that the “acceptable” language of rights is confined to classical liberal notions of rights. For example, the Charter is a shield not a sword. The classical liberal notion encompasses the belief that it should not be used to protect private parties, nor should it be used to deal with economic interests. However, he did suggest that while this liberal ideology limits the application of the Charter, it does not render it useless. The Charter is still a valuable tool to challenge legislation and prevent coercive state action against historically disadvantaged groups.

Sufficient Remedial Power
Mr. Bakan argued that the most limiting concept of rights is that it cannot address underlying social and economic institutions or structures which perpetuate inequalities such as poverty. The Charter can only deal with specific state action and not general systemic processes or institutions. He suggested that homophobia is institutionalized in social and economic structures and cannot be addressed adequately by challenging specific actions. To illustrate this point he referred to the Little Sisters case involving a challenge of the actions of customs officials in exercising their discretion under the Customs and Excise Act to seize lesbian materials on the basis that they were obscene because they had gay and lesbian content. The remedy sought would only have made a small dent in the censorship of gay and lesbian material. Addressing the actions of customs officials only deals with the symptoms of homophobia.

Symbolic Value of Charter Litigation
The Little Sisters case received broad media exposure and it is arguable that the case had a significant symbolic impact in increasing the visibility of gay and lesbian issues in the mainstream.

Mr. Bakan noted that the symbolic value of litigation of this sort is the most under-researched area of Charter scholarship. In composing a framework within which to assess the symbolic value Mr. Bakan suggested that these questions should be asked:

• Does the case assist in narrowing or broadening the social understanding of equality issues?
• How do rights strategies impact on social movements themselves?
• What are the implications of giving judges the authority to define social movements?

Whether the Little Sisters case helped to broaden the social understanding of equality is debatable. To a large extent the debate was transformed from a discussion of gay and lesbian discrimination or homophobia into a debate about free speech.

Further, it is frequently assumed that litigation is a positive mobilizing tool which promotes social activity. There is also the possible effect of creating internal divisions within the social movement about whether litigation ought to be utilized and if so how. Many feel that litigation limits the public’s view of the movement to liberal notions. Rights strategies in litigation must fit within the liberal framework of rights ideology which supports one particular group’s views within the political movement. This has the potential of excluding, limiting or marginalizing other political action or viewpoints within the movement. For example, in Egan, the judges theorized about the nature of sexuality and sexual orientation. A range of views were expressed but the norms of sexuality were not challenged. Homosexuality was treated as one undifferentiated mass. Bisexual and transgendered persons were rendered invisible.

Recommendations
In Mr. Bakan’s view each particular circumstance must be examined to determine the symbolic value and to weigh the disadvantages associated with Charter rights litigation. To increase the range of opinions available to judges, in Mr. Bakan’s view, litigation ought to include a broad-based community consultation, including activists, academics, lawyers and others. Strategies ought to be considered in terms of their broader symbolic value and political effects.

Occupiers Liability Act Amended
The purpose of the amendments to the B.C. Occupiers Liability Act (“the Act”), which came into force on May 13, 1998, is to facilitate the development of the Trans Canada Trail (“the TCT”) and to improve recreational access to undeveloped lands throughout BC. David Ranson, Senior Policy Advisor with the Ministry of Environment, Land and Parks addressed a joint meeting of the Insurance and Civil Litigation Subsections recently to consult with members regarding the proposed changes. The amendments have their genesis in the construction of the TCT, which will create a 15,000 kilometer multiple use corridor across Canada possibly as early as July of the year 2000. Most of the TCT will be constructed on Crown or public land but some parts may cross privately owned land, with landowner agreement. Historically, private landowners have been reluctant to allow recreational use of their lands because of concern about their exposure to liability under the Act. In order to address the concerns of landowners and of those responsible for maintaining the TCT, planned amendments include a lowering of the standard of care owed to non-paying recreational users and to trespassers by an occupier of certain classes of undeveloped land. This approach to reducing liability has been adopted in Ontario, Prince Edward Island and Nova Scotia. A similar approach has been adopted in most American States.

Duty of Care Prior to Amendments
The pre-amendment Occupiers Liability Act imposed a common affirmative duty on occupiers of land and premises to take reasonable care to ensure that people and their property are reasonably safe in using the land or premises. An occupier is a person who is in physical possession of premises or who has responsibility for and control over the condition of the premises and the persons and activities allowed on them. The goal of the pre-amendment Act was to promote and sometimes require positive action on the part of the occupier to make his or her premises reasonably safe.

Amendments
Under the amended Act occupiers will have a duty to non-paying recreationists:

• not to create a danger with the intent to do harm to the person or damage the person’s property, and;
• not to act with reckless disregard to the safety of the person or the integrity of the person’s property.

This is the same duty of care owed under the previous Act to persons who willingly accepted risk and to trespassers on premises primarily used for agriculture. In order to ensure that anomalies are not created in the duty of care owed to different persons, this lower duty will also be extended to trespassers on classes of land other than agricultural. These classes are specifically enumerated.

This lower duty of care will apply to persons who are trespassing on premises with the intention to commit a criminal act or in the commission of a criminal act, without restriction on the basis of the class of land involved.

Reckless Disregard
The term “reckless disregard” in the pre-amendment Act has been interpreted by the courts to involve a two-step test:

• The occupier must know of the presence of persons on his or her property, or that presence in the future is very probable; and
• Recklessness requires proof that an occupier did or omitted to do something that the occupier should recognize as likely to cause damage or injury, not caring whether such damage or injury results.

Affected Lands
The defined classes of land on which this reduced duty of care will apply include:

• premises used primarily for agricultural purposes;
• rural premises which are used for forestry or range purposes, are vacant, undeveloped, forested, wilderness premises or are private roads reasonably marked;
• recreational trails reasonably marked;
• utility rights-of-way and corridors, excluding structures located on them.

The interpretation of these terms is to be left to the courts. The intent in defining such lands is to capture rural and undeveloped lands which are not subject to the same expectations of close management and supervision as urban properties.

It is noteworthy that the pre-amendment Act already exempts from liability a number of types of roads, such as public highways and other roads owned by government at all levels.

Landowner Rights
It is important to note that the changes do not oblige a landowner to allow recreational users to use their property and that occupiers will always retain their right to refuse access.

How Judges Decide on Maintenance in Family Court
Master Bishop addressed members of the Okanagan Family Law Subsection and offered his thoughts on how judges decide maintenance matters in family court.

Dividing Incomes
Master Bishop acknowledged that counsel’s job is to promote the interests of his or her client and that the role of the bench is to decide what is fair in the circumstances. Therefore, when acting for a maintenance recipient, counsel may argue that his or her client “needs” a certain sum of money. However, there is usually only a limited amount of money to divide between the parties and the children. In Master Bishop’s opinion, counsel sometimes lose sight of this fact. He believes that equal income splitting rarely occurs in the real world. It is a fallacy to assume that there can be equal amounts for both parties when there is not enough money to go around. He stated that since September 1991 he has seen a total of 10 cases where there was enough money to go around. He believes that judges often take the view that there should be an allocation off the top in favor of the payor as incentive for paying maintenance and then the balance should be divided up, taking into account that the payor will pay the full amount right away and will get no tax relief for at least a year.

Income Determination
Master Bishop commented that he looks exclusively at line 150 of the parties’ tax returns to determine income and takes an average where necessary. If counsel wish to argue for a different analysis he expects them to come prepared with calculations. If special expenses or undue hardship are being claimed he requests a printed schedule outlining the relief sought. On interim applications he is very reluctant to order special expenses or to deviate from the Federal Child Support Guideline table amounts on the basis of undue hardship.

Tax Savings
Master Bishop encouraged counsel, where possible, to create possibilities for tax savings. He suggested that counsel may want to obtain the divorce and adjourn the other issues for settlement purposes. Most judges will order a divorce and adjourn other issues where there is an interim order for support in place.

Financial Disclosure
Where financial disclosure has not been provided Master Bishop stated that he does not believe it is helpful in most cases to order a $5,000 fine under the Family Relations Act or to take advantage of the cost consequences under the Supreme Court Rules. He is more likely to use the contempt of court sanctions. He stated that he is prepared to make interim orders where a respondent is refusing to file financial disclosure documents. He was also of the opinion that judges often do not place much emphasis on Property and Financial Statements as they are of limited use if they do not have the three most recent tax returns and assessments attached.

Custody
When asked whether joint custody with a 50/50 sharing of custody was the essential starting point for a judge’s consideration of custody, he commented that most new judges and masters like to see an equal playing field. However, in his experience, it is most common to see a mother obtain custody whether it is termed joint custody or primary residence.

He went on to note that one of the most difficult determinations for a court are questions of parental mobility. He advised that if the custodial parent appears to have frustration of access as the primary motivation for the move, the request will likely be denied. Where, however, the reasons for the move are to join a new husband or obtain a job then in most circumstances where there is no indication that there has been any access denial the request will be granted.

This article was published in the August 1998 issue of BarTalk. © 1998 The Canadian Bar Association. All rights reserved.