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Law, Ethics, and the Charter of Rights and Freedoms – Kelly

My father’s old friend is a law professor and has taught, studied, edited, and written books on ethics.  After reading the ethics blogs, this is what he replied with:

Many apologies for not responding sooner to the issues you raised in
respect of your daughter’s studies re law and ethics and the Charter.
I have been swamped…
Each time I have looked at the blog topic of the Charter as ethics
I am reminded of how complex this can be. It is impossible
to separate law and ethics generally in my view and the Charter
becomes but one expression of this.It is true that lawyers tend to see Law and Ethics as a unique topic
typically devoted to studying their own conduct, the latter being a very
important topic and practice. However lawyers seldom look
at the ethics of the substantive law with which they are dealing.A criminal lawyer looking at the Criminal Code would look at it technically
– does section such and such apply to her client (or the person she is
prosecuting). She would ascertain the facts, apply an appropriate
section of the Code to the facts (or respond to a charge laid
under a specified section) and would do this within
the context of rules of statutory interpretation and case law interpretation.
It is a technical act and, day to day, it mostly is simply that for most of us.
But that is not the only level one can look at the Code. It is
a profound statement of morality, of principles of right and wrong,
reflecting basic beliefs about proper behaviour. It is an offence to murder
someone – sure – but why and the why of it is an ethos
about right behaviour.

I am not sure how your daughter’s group is using the term ethics.
For many people ethics are synonymous with morals. The definition at Dictionary.com
reveals some of the complexity of the term:

[eth-iks] Show IPA
plural noun

1. ( used with a singularor pluralverb ) a system of moral principles:

the ethicsof a culture.
2. the rules of conduct recognizedin respect to a particularclass of human
actions or a particulargroup, culture, etc.: medical ethics; Christianethics.
3. moral principles,as of an individual:His ethics forbade betrayalof a confidence.
4. ( usuallyused with a singularverb ) that branch of philosophydealing with values r
elating to human conduct, with respect to the rightness and wrongness of certain
actions and to the goodness and badness of the motives and ends of such actions.

In my work in ethics law – I tend to view ethics as rules of conduct. Those rules
in turn reflect values and principles. The Charter reflects moral values,
ethical principles and rules of conduct.

The Charter is a profound statement of values but also provides rules for
public institutions. It values individual freedom (eg to worship,
to express oneself freely) and collective rights (language, schooling,
aboriginal rights). On the one hand it shows a value for the individual,
the importance of individual self fulfillment but also values the collectivity
or collectivities within society generally and thus reflects an appreciation and
valuing of our humanity as a social phenomenon.

The Charter has rules – public institutions must not abridge fundamental freedoms
for example – or well they must not do it unless the abridgement or breach
can be demonstrably justified in a free and democratic society. The value
here is again valuing our social being. The rule is that freedoms are not

In my view, judges interpret the Charter pretty much the same way they do any piece of
legislation. To be sure, they are allowed to look at a wider array of information and documentation
than would typically be the case. Policy documents, legislative history, international instruments
etc etc are important in Charter litigation in a way in which they are typically not in othesr.

But in the end judges judge, and in so doing reflect as best they can their broad understanding
of the law, their own moral precepts and visions and how their understandings fit with
case precedent and statutory interpretation.

The blogger makes this statement:
I suggest the Supreme Court is using the Charter to implement ethics at an
individual case level, while keeping the law intact at the general level […]
much as the old courts of equity did.

To be fair I am not exactly sure what this means and I may be missing the point for which
I apologize in advance. Any judicial decision is an implementation of ethics
at an individual case level but what does it man to say “keeping the law intact
at a general level”. Every judicial decision does this because in fact decisions
are at the heart of our law. BUT Charter decisions shape our law perhaps more
than many other kinds of decisions. A decision on a Charter matter will shape other
law, it may strike it down. Consider Edward books and Sunday shopping, consider
H v M and spousal rights, consider the Burns case and the courts disavowal of
the death penalty etc etc etc ….

Charter decisions move the law considerably but this in turn does keep the
law intact because that is the law and that is how the law moves and grows…

The equity statement is interesting but not unique in the Charter environment.
The courts of equity and common law were merged in the 19th century.
There are law and equity statutes which allow equitable relief in legal decisions
at many court levels. Also superior courts historically have had equitable
jurisdiction generally.

The Charter itself is the supreme law of the land. Its values and precepts and rules trump all others
in the domains it regulates.

The statement about the Charter being liberal social engineering is problematic. It goes hand in
hand with the view that Supreme Court is filled with liberal activists and that the Charter
is about judicial activism. For me judges are always activist because that is what making a decision
means – it is an active practice and surely does reflect morality and ethical conduct. That
is simply life. However that does not mean the Charter is a liberal or conservative document
– rather it is a vessel with some basic ideas and fundamental values and rules which will be interpreted
and reinterpreted in successive social milieus and will evolve with society.

The liberal social engineering barb is from conservatives who do not like certain decisions
which they regard as activist. Funny though, I have yet to hear any conservative political
scientist or lawyer rail against the Irwin Toy decision which recognized the idea
of commercial expression which could receive Charter protection. Where were
these critics when that decision came out?

I think the right/left, conservative/liberal division is too simple to handle the complex decision
making which must occur. This does not mean that judges will not act on their core
beliefs and ideals so far as law and precedent allow them. Of course they will
and so they should – because to judge is…well… to exercise judgment which
requires all of the foregoing………..



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