Good try, Danny, but not entirely convincing.

The Jane Doe concerned was awarded damages for a breach of duty of care/act of negligence by the Toronto Police.

The fact that it was also deemed to be in contravention of gender rights described in the Charter was considered by some Canadians to be "groundbreaking", but interestingly this finding did not carry with it a separate penalty, or award to the plaintiff.

So the Charter was used as a sort of background bit of finger-wagging by Her Honour Janet McFarlane, rather than as a means to bring a perpetrator to justice, or right the wrong of a victim. This had already been achieved through non-Charter legal processes.

I don’t agree with the “finger-wagging” attribution Pericles, as my point is that invocation of a rights norm as an element of claim in a social millieu that takes the charter principles/standards seriously and expects action to follow to meet them where breached/ignored/not met, leads to structural/system change in a way that plaintiff success alone does not (and it depends on the available remedies of course). The perp capture is for the purpose of my point not relevant nor is her individual damages – irrespective how constituted. It was how the charter claim affected policing policy and practice to the community.

Another one I like is Re K & B which illustrates how a Charter challenge can lead to reconsideration of a discriminatory law, found to be without rational foundation, which prevented children the opportunity of a legal benefit.

In essence, this case involved two partners living in Ontario in an unmarried relationship. One had a child. They wanted both to be legal parents for the child’s economic and legal security so they wanted the non-biological partner to have the legal status of adoptive parent. A provincial law made even investigation of whether this would be in the best interests of the child pointless solely because they were both women.

Using the legislative editing power it has under the Charter, Prov Judge Nevins modified the Act's definition of spouse to include same sex couples. Again, to press my focus on the broader rather than individual case parties implications of invoking the charter, not only id the outcome change the situation in Ontario but, on a wider scale, parliaments made similar amendments in other provinces, some without waiting for litigation.

Are there any Canadian cases that have risked persuading you, Pericles?
cheers

danni 2 cents worth,

nice try however you have picked cases where judicial view is just catching up with societal mainstream, therefore nothing spectacular there.

Would your Bill of Rights enable a person to create an offspring via reproductive cloning, if not how will you ensure that it can be changed when society's attitudes towards it change.

At the moment it is shock horror and immoral, will society have the same view in a decade or two decades time?

We do not know and any institution created by previous generations that hamstrings future societies to govern themselves is sub optimal.

Actually slasher, the comments you make about Re K & B is an argument for a local charter.

The case was decided in 1995. Over 10 years later, under Victorian law, K & B would still be in their original situation because unmarried families with children in Victoria - and opposite sex as well as same sex - are, in fact, precisely in that barred position today under state adoption laws. Some would find that lag spectacular.

The reason for that is not the pace or content of judicial view. It is because there is no mechanism such as a charter on which to launch a challenge to the existing statute and, through the case, call for a judicial opinion with subsequent consequences flowing the opinion such as seen in K & B etc. cheers,

I remain unconvinced.

As I see it, in the rape case there was a specific "wrong", in that the police decided not to warn all the women in the rapists "target" area, in order to have a better chance of catching their felon.

The Charter was invoked in two ways - gender discrimination, and "right to life" - neither of which has any direct bearing on the failure of the police to meet the provisions of their mission statement.

To the distant observer, it would appear that there would be a dozen other ways to achieve the same outcome, and the Charter was merely a blunt instrument, employed simply because it was there.

My question, if you recall, was not for instances where a Bill of Rights was invoked, but for examples where it actually made a difference to a particular outcome.

As for K&B, you might have noticed that New South Wales happily enacted legislation to achieve the same outcome back in 1999, without the "benefit" of a Bill of Rights, or a Charter of any kind.

I'm still waiting for an illustration of a situation where the presence of a Bill of Rights made a specific difference to a specific outcome to a specific individual or class of persons. Canadian, Rwandan, Sudanese, I don't really mind.

There are many problems with a Victorian BoR.
1) The process hasn’t been transparent, with George Williams hiding his impressive bibliography of pro-BoR materials. (ie. The Case for an Australian BoR” and articles such as “The ACT BoR is just the first step in the right direction”, “The ACT's BoR: a new era in rights protection for all Australians” and “A federal or state-based BoR for Australia?”).
2) There is a problem when a Government pushes for a BoR- either it does not trust the future Opposition that may make different decisions, or it lacks the strength of its own convictions and would rather have the courts do its work. Either way the implication is that the electorate can't be trusted and and should be forever bound to the current ideology.
3) The NZ situation is very similar to the proposed situation here. Despite the assurances that Victoria’s Bill won’t be like the US/Canadian model, one can see that in “less than a decade the judges have transformed the Act into an instrument that allows them to do not that much less than their Canadian judicial brethren who operate an overriding, fully justiciable model.”
4) The Act will encourage frivolous claims, which, (and I would have thought this was a no-brainer, Irfan) will obviously benefit lawyers. I am only a fourth year law student, and can see this plainly. Here are some brief examples of some of the claims that have been taken under the NZ Act: a) a claim made that the NZ Bill protected the right of the plaintiff to walk naked down his street, and b) a claim that a rise in rent for public housing breached one’s “right to life”.
5) The impact on the Criminal law will be regrettable. The history of use in this area has been as a ground for attempting to overturn the admissibility of evidence, evidence obtained under search warrants and breath testing of drunk drivers. It also gives lawyers a new source of technicalities to allow the guilty (including those who have confessed) to go free.