Daphne Bramham has offered a thoughtful summing-up of the decision-making process confronting Chief Justice Robert Bauman. On March 26th she wrote in the Vancouver Sun:
Ever since the Charter of Rights and Freedoms was enshrined in the Constitution in 1982, there has been a fundamental tension in Canada over competing rights and between individual rights and societal values.
The Charter makes it clear that rights are not absolute. Section 1 says all of the rights and freedoms cited are subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
That determination is left to the courts and it's up to Parliament to enact remedies.
Over the coming months, two court decisions -- one in British Columbia and the other in Ontario -- will highlight the chasm that can exist among competing rights and between rights and values.
In British Columbia, the issue is polygamy with closing arguments in the case starting on Monday.
Chief Justice Robert Bauman of the B.C. Supreme Court must decide whether having multiple, conjugal partners is so inherently harmful to individuals and society it overrides an individual's right to act on "sincerely held beliefs," the right to liberty and freedom of association. He must decide whether those individual rights trump the equality rights guarantee and he will, no doubt, be cognizant of the fact that the majority of Canadians oppose polygamy.
In June, justices of the Ontario Court of Appeal will determine whether a lower court judge was correct in striking down the criminal prohibition on pimping, keeping a brothel and communicating for the purposes of prostitution.
They will weigh the right to security of person, free speech and association against the perceived societal harms of prostitution.
In the polygamy case, the court-appointed amicus curiae and his allies, which include the Fundamentalist Church of Jesus Christ of Latter Day Saints and the B.C. Civil Liberties Association, take the position that individuals' right to choose is paramount.