This is Part 2 of Ivan Jankovic’s multi-part essay. See also Part 1.
II. Canadian Emulation
It is not surprising then that Canadian intellectual and political elites keen of using the judicial shortcuts for political change, otherwise more difficult to achieve, were looking at the American experience with envy. As Peter Russell had shown, even in the era before the Charter the Supreme Court was slowly moving in the centralizing direction, by infringing on the provincial prerogatives, especially in the area of criminal law, but also commercial regulation (Russell, 1985). Before the Charter and independently from it, the pattern of judicial review in Canada started to remarkably resemble the American template. The first example is a blatant revision of the established limited meaning of the “Peace, Order and Good Government” provision of the BNA, according to which POGG meant only an emergency power in the cases such as natural catastrophes. In R. Crown Zellerbach Canada Ltd  the Supreme Court used the POGG provision to grant to the Canadian federal government exclusive and unlimited right over ocean pollution. This was a major step in the direction of giving the full control over environmental regulation to the federal government.
In the case General Motors of Canada vs City National Leasing  the Court radically redefined the commerce powers of the federal government. According to the BNA Act the Parliament has a right to regulate trade and commerce, but the provinces have a jurisdiction over property and civil rights. Who would then regulate economic activity in general? The Judicial Committee of the Privy Council resolved this conundrum by affirming the Parliament had a jurisdiction over the interprovincial trade, whereas provinces would regulate economic activity within their own borders. However in General Motors the Supreme Court changed this by arguing that in the case the provinces are ‘incapable’ of regulating certain economic activity the Parliament can do that (the definition of “incapability’ was of course anyone’s guess). In a related case Kirkbi AG vs Ritvik Holdings Inc.  the Supreme Court upheld the constitutionality of the federal trade-mark law, which previously has been in the provincial jurisdiction, as a typical intra-provincial economic issue. In a remarkable repetition of American model given by Wickard vs Filburn, those two cases transformed the power of federal government to regulate inter-provincial commerce, into a blank check to regulate commerce, period. Hogg and Grover offer a typical rationalization of this process as required by ‘economic modernization” (writing in the context of the General Motors case):
It is surely obvious that major regulation of the Canadian economy has to be national. Goods and services, and the cash or credit which purchases them, flow freely from one part of the country to another without regard for provincial boundaries. Indeed, a basic concept of the federation is that it must be an economic union…. The relative unimportance of provincial boundaries has become progressively more obvious as industry has tended to become more concentrated (Hogg and Grover, 1976: 204)
The Charter of rights exacerbated this trend towards centralization by giving to the courts and the interest groups an explicit authorization for using the judicial process as a way of transforming the unpopular policy positions into the minority “rights” claims, in a very similar manner to how this was done in the USA (Manfredi 1990).
Christopher Manfredi demonstrates that the large portions of the Charter decisions were directly inspired by the American Fourteenth Amendment and Commerce clause jurisprudence, and especially by the social-engineering approach of the Warren court (Manfredi, ibid.). For example, although before the Charter era the number of the references to US law was very limited in the Canadian Supreme court’s decisions, the number of such references skyrocketed in the 1980s. For the period 1984-1988 for all the cases heard before the Supreme Court, 75% of the references were from the US federal courts and 52% from the Supreme Court itself. However, for the Charter cases the numbers were even more dramatic: 91% of all American citations came from the federal courts and 73.5% from the Supreme Court (Manfredi, 1990: 507). In addition to this, more than 80% references to the United States Supreme Court were referring to the decisions covering the “golden age” of liberal activism of the Warren and Burger Courts (1953-1986). This is in itself a strong indication that the Charter jurisprudence was inspired primarily by what Manfredi calls “non-interpretivism” of the American recent tradition.
When we look at the most high profile cases, this statistical correlation is amply confirmed. For example, in R. vs Morgentaler[i] the Supreme Court essentially applied the template given by Roe vs Wade, a canonical case of the “living Constitution” jurisprudence: according to Canadian Chief Justice Dickson the Court had a “crucial obligation of ensuring that the legislative initiatives of our parliament and legislatures conform to the democratic values expressed in the Charter”. And those “values” were “derived from the changing societal needs”. This was a carbon copy of the “evolving standards of decency of a maturing society” standard, formulated by the US Supreme Court in Trop v Dulles[ii] in 1958, and so memorably applied in Roe vs Wade.
One of the strongest elements of the convergence between the American and Canadian jurisprudence is seen in the adoption of the principle of “substantive due process” in Canada and its consistent use against the subnational governments (Manfredi 1990). This principle has been used ever since 1897 in America (Algeyer v. Louisiana)[iii] as a powerful tool of enforcing the “individual rights” against the states; in the early era 1900-1935 the main targets were economic and social regulations that went against the Supreme Court’s prevailing laissez-faire philosophy, while after the Second World War, when the left-wing forces took over federal judiciary, the same principle was used to clamp down on state educational policies and criminal justice procedures (school de-segregation, school prayers, abortion, rights of the convicted and so on). In the Canadian context, substantive due process means that in order to qualify as constitutional the law must be “reasonable”, and protect not only the formal common-law due process right but also the “values” and “rights” of the citizens. Of course, it is up to the judges to define the meaning and scope of the application or “rights” and values”, as well as of “reasonableness” of a law.
In Canada this approach was first applied in Motor Vehicle Reference[iv] in 1985 when the Supreme Court struck down a British Columbia law against drunk driving, according to which this was an offense punishable by jail, irrespective of whether the driver actually had made any damage or not. The court found that this provision violated the guarantee of the liberty of person from the article 7 of the Charter. This was the first in a train of court cases in which the provincial legislation was struck down or limited in scope, or even legislatures instructed to adopt certain laws in order to satisfy the judge-made definitions of what kind of policy certain Charter phrases entail. In Quebec vs Association of Quebec Protestant School Boards,[v] the Court found that the Bill 101’s limitation of English language instruction in schools to the students whose parents went in English schools was “unreasonable” and abrogated individual right from section 21 (1) (b) of the Charter. Thus the Supreme Court effectively abolished the provincial exclusive jurisdiction over language and education from the article 92 of the BNA.
In Health Services and Support – Facilities Subsector Bargaining Assn. vs British Columbia [vi] the Supreme court discovered in the section 2 (d) of the Charter dealing with free association a right of the health care employees to collective bargaining. This right was denied by the Bill 29 of the legislature of British Columbia, and by the Supreme Court itself in its “trio” decisions from the 1980s in which it decided that the right to association did not include collective bargaining .Again, the provincial exclusive jurisdiction, this time over health care, was compromised on the basis of a dubious interpretation of a Charter right, having nothing explicitly to do with collective bargaining. And there are many cases of this sort where the “unreasonable limits” to liberty imposed by the provincial legislation are found in the most unlikely places.[vii]
Maybe the most egregious examples of the anti-provincial bias of the Canadian Supreme Court – that do not strictly belong to the Charter jurisprudence but are nevertheless directly connected to it – are a couple of critical constitutional decisions pertaining to the issues of changing the Constitution and sovereignty and independence of Quebec, the so called Patriation Reference of 1981 and Quebec Veto Reference of 1984. The centralizing effects and influence on gradual de-legitimization of Canadian federalism that these decisions have had is hard to overestimate. The first among them, Patriation Reference, came as a solution for the problem of the Trudeau-government’s attempt in 1981 to unilaterally patriate the Charter of Rights and the new amending formula without any provincial participation. Eight provinces joined the forces in requesting the opinion of the Supreme Court about this, claiming that provincial consensus was an old constitutional convention, and as such a part of Canadian constitutional law, thereby making Trudeau’s manoeuvre unconstitutional. The Supreme Court decided that the convention existed indeed, but has not represented a law, and as such was not enforceable, so Trudeau has a legal right to proceed unilaterally. However, the Court added that such a move would not be legitimate unless a ‘substantial’ provincial support is secured. Although this might sound as a compromise position, it is important to note that the court rejected the interpretation of the convention by the seven out of eight provinces, that a unanimous consent was needed, and accepted instead the doctrine that only Saskatchewan advanced, that of a ‘substantial’ consensus. Since nobody exactly new what the ‘substantial’ consensus meant, this obviously greatly facilitated Trudeau’s strategy and fatally weakened the negotiating position of the dissenting provinces.
The Quebec Veto Reference came two years after the adoption of the Charter, in 1984. The issue was whether this ‘substantial consent’ from the Patriation reference meant that Quebec had a veto power or not. If yes, then the Constitution Act adopted against Quebec’s will would obviously fall. In this new case, the Court disregarded the criteria it previously established in the Patriation reference (namely that a tacit consensus of the actors was sufficient to establish a constitutional convention); it asserted now that the convention of Quebec needing to consent did not exist, because there was no evidence of explicit agreement among the political actors. By this inconsistent manoeuvre the Court avoided the discussion about the two remaining principles, the historical precedents and the reasons for the rule,[viii] both of which would have tremendously strengthened the Quebec’s case. Namely, no constitutional amendment has ever before been adopted without Quebec’s consent, and the reason for the rule was the traditional status of Quebec as a constituent part of the Canadian federal compact, and the home province of one of the founding nations of Canada. However, the Supreme Court simply disregarded all of this. It obviously twisted the law in order to save the position of the federal government, but also its own newly acquired power as the oracle of ‘human rights’ protected by the Charter.
It is impossible to overstate the significance of this decision. It legitimized the constitutional order created by la nuit de long couteux, which has been treated in Quebec as a coup d’etat, strongly increasing the powers of the federal government to police the provinces via the Supreme Court’s Charter jurisprudence, and introduced the unprecedented majoritarian amending formula that replaced the principle of unanimity that guided all previous processes of intergovernmental negotiations.
The usual counter argument that the Supreme Court does not act so as to strengthen centralization and trump on the provincial rights entails citing the statistical data showing similar percentage of federal and provincial statutes being nullified by the Court (Kelly, 2001). The problem with this defense is that the extent or the existence of centralist bias cannot be ascertained only at the level of statistical averages: dynamical and structural factors also play a role. And they tend to favour heavily federal government and centralization. When an issue is litigated before the Supreme Court, there is always one outcome that any particular province may wish for: the one that does not invalidate their concrete policy choice. However, irrespective of who gets rebuked and who is vindicated in any specific case of Charter litigation, the result always leads to the creation of a “national standard” and hence to political standardization. Therefore, for the central government this is strategically a win-win situation, and for the provinces lose-lose situation. Even if they win in a particular case, the issue gets standardized and homogenized and legislative powers of the provinces eroded by establishing and further legitimizing a one-size-fits-all template which will be utilized in all future cases.
Peter Russell this way eloquently summarizes this argument about the Charter review as a major centralizing tool (way back in 1983!):
I think that the Charter`s nationalizing influence will be felt most through a process scarcely mentioned by its political sponsors – the process of judicial review…Judicial decisions on the Charter will be unifying in that the very debates and controversies they produce will be national and on the issues that transcend the regional cleavages which are usually a feature of national political controversy in Canada. Court cases on the Charter normally will not pit region against region or the provinces against the feds. Instead the principal protagonists will be interest groups and aggregations of individuals from all parts of Canada…Although the controversy will be intense, it will be waged on a national level in the arena of national politics and on grounds that do not call into question the legitimacy of Canada as a national political community. It is in this sense that the Charter may well turn out to be a nation-building instrument (Russell, 1983: 31).
III Judicial Supremacy and a “Living Tree”
The principal doctrinal influence from American jurisprudence on the Charter decisions is the philosophy labeled the “living Constitution” in America and the “living-tree constitutionalism” in Canada. Both of them assume that the constitutional provisions should not be interpreted according to any fixed model, but always in the context of the current, constantly evolving “societal needs”; the constitution, that is the principles and provisions embedded therein, is a living organism that should adapt to the changed circumstances.
The main difference, however, is that the American “living Constitutionalists” had to reinterpret and stretch the language of the Constitution (in a manner contrary to its historical text) so as to fit with their political preconceptions; whereas, their Canadian counterparts were given the Charter of Rights, whose main provisions were, perhaps intentionally, made so vague and open-ended that an originalist interpretation was from the beginning very difficult to apply. No court charged with applying the extremely broad Charter language could avoid some level of policy-making discretion and imposing its own preferences and philosophical preconceptions about what the rights are. Morton and Knopff nicely illustrate this: “Does the section 2 guarantee of freedom of expression prevent the censorship of pornography and hate literature, or do the section 15 equality rights justify – perhaps even require – such censorship? Does section 7 which guaranties ‘everyone’s’ right to ‘life, liberty and security of person,’ protect the life of a fetus or the liberty of a woman to have an abortion?” (Morton and Knopff, 2000: 33-34).
Obviously, the issues here are not legal, but philosophical and moral: what constitutes “life” and what constitutes “liberty”, whether “equality” as a value invites redistribution or strict enforcement of everyone’s private property rights and so on. And while it could be plausibly argued that it is not quite unproblematic that such difficult issues are to be resolved by majority vote, it is certainly even less convincing to claim that the same issues should be decided by the five politically well-connected lawyers in Ottawa.[ix] The consisting part of the very idea of judicial review under the Charter (especially with the “living tree” judicial philosophy) is an implicit assumption that the justices of the Supreme Court are somehow uniquely qualified to make difficult moral and philosophical choices in the name of 30 million people. Hence, the idea of “rights” as constitutional limitations of government power is misleading. As Morton and Knopff point out: “The Charter does not so much guarantees rights as give judges the power to make policy by choosing among competing interpretations of broadly worded provisions” (Morton and Knopf, 2000: 33).
Some authors are trying to strike a middle ground here, by claiming that judicial review as a constitutional principle could be salvaged, but only if the courts’ rulings were to be based on “interpretivism”, rather than on judicial activism and reading one’s individual preferences into the text. Christopher Manfredi is an example of this approach: “Judicial nullification of legislation is legitimate only when a statute contradicts specific constitutional provisions or violates rights clearly inferable from the document’s language” (Manfredi, 2001: 25). However, it is by no means clear how to determine whether an instance of legislation violates “specific provisions” or whether certain rights are “clearly inferable” from the constitutional text or not. The problem is that most of the constitutional disputes over “rights” are not instances of claims “clearly inferable” from the text, but rather of vague provisions inviting judicial arbitration in moral and philosophical disputes. Whatever the judges do, quite irrespective of the specific judicial philosophy they espouse, that will always of necessity mean “rewriting” of the text, rather than “interpreting” it.
As we already said, the very text of the Charter makes interpretivist judicial review very difficult to sustain. In the article 1 of the Charter the four criteria for legal limitation of the Charter rights are spelled out, at least two of which represent the direct invitations for judicial arbitrariness: namely, the laws have to impose only “reasonable limits” to liberty and have to be in accordance with a “free and democratic society”. Obviously whether a law is to be considered constitutional shall not depend upon whether it violates any given “right”, but upon how the judges define such vague terms as “reasonable” and “free and democratic society.” The best illustration of this problem is the famous Oaks case in which the Judge Dickson attempted to define explicitly the concept of “free and democratic society” from the article 1 of the Charter as: “respect for the inherent dignity of human person, commitment to social justice and equality, accommodation of the wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society” (Manfredi, 2001: 139). The only thing we are not told is how to define “social justice” or “equality”, which political and social institutions ‘enhance participation’, and what “participation in society” means in the first place, as well as what the “dignity of human person’’ entails.
Obviously, this definition, meant to increase clarity, only reinforces confusion; instead of being a discretion-minimizing tool it is implicitly a discretion-disguising and codifying tool; it allows to judges to make sense of vague concepts by relating them to their own personal definition of equality or even more vague concepts, arbitrarily associated with the former! Unlike the American constitutional law where the judges had to invent and impose by fiat the “substantive due process” and ‘living Constitution’ dogmas in order to justify disrectionary judicial policy-making, in the Canadian case these principles were entrenched into the constitutional text itself! Ironically, a ‘textualist’ or ‘originalist’ approach to the Charter would mean of necessity judicial activism, because the text itself is such as to simply require discretion.
An additional illustration of why interpretivist position is not viable is the famous theory of the “dialogue” between the courts and legislatures, developed most prominently by Hogg and Bushell (1997) and wholeheartedly embraced by the judges. The theory simply says that nullifications of the legislation made by the Supreme Court in the name of protecting the Charter rights, or even the ‘read in’ lectures what has to be done about the law, should not be understood as a unilateral activism by the judges, but rather as a two-way interactive process of dialogue in which the court allows the legislatures to adjust and amend the legislation in order to meet the requirements of the Charter (as interpreted by the judges), while protecting their legislative agenda. Hogg and Bushell allege four different reasons why the Charter jurisprudence is not a unilateral imposition of judges’ edicts, but rather a sophisticated dialogue. The first is the presence of the notwithstanding clause in the Constitution, allowing the legislatures to override the Court decision, under certain conditions. However, even they acknowledge that this remedy is all but unusable in current political circumstances. The three main factors facilitating this curious dialogue are according to the authors: the section 1 of the Charter, qualified Charter rights and equality rights (Hogg and Bushell, 1997: 84-91).
The first dialogue-facilitating feature of the Charter pertains to the Court’s handling of the famous phrase asserting that Charter rights could be limited in a way which is “demonstrably justified in a free and democratic society”. Obviously what amounts to “reasonable” and for “free” and “democratic” is not self-evident. In order to distinguish between the reasonable and unreasonable limitations of Charter rights the Court came up with the so called ‘Oaks test’, consisting of four criteria: in order to be ‘reasonable’, 1. The law must pursue an important objective; 2. The law must be logically connected to the objective; 3. It must interfere with a right “no more than it is necessary” and 4. The law must not have a disproportionately adverse effect to those on whom it is applied. (Hogg and Bushell, 1997).
Obviously, this “test” does not make things much clearer. If anything, it muddies the waters additionally; it tries to give a more precise meaning to such a vague term as “reasonable”, by using the even more vague criteria as “important”, or “necessary”. To say that a limitation of a Charter right is “reasonable” if it is in pursuance of an “important” goal, and infringes upon a right only so far as it is “necessary”, is not a definition at all: a judge capable of discerning whether a legislative action were “important” or “unnecessarily intrusive” of the Charter rights should be able to say directly what is a ‘reasonable limitation’ to begin with. The specifications are redundant! Again, just as in the case of the definition of ‘free and democratic society’, the only effect of this ‘test’ is to solidify the judges’ shadowy policy-making credentials by pretending that the test gives any clear criteria for making sense of the constitutional provisions and hence is something more than a carte blanche for the judges’ to impose their own policy preferences on the legislators.
The example Hogg and Bushell offer clearly confirms this: “the Ford case could be offered as example. In that case, the Supreme Court of Canada acknowledged that the protection of the French language is sufficiently important purpose to justify a limit on the freedom of expression. But the Court held that the absolute prohibition of the use of other language signs impaired the rights of English speakers more severely than was necessary to accomplish the purpose” (ibid. 85). The main problem here is: the Court is taking over the law-making power and positioning itself as a second chamber of the Quebec legislature with the veto power over the laws enacted. Is protection of the French language really important enough to justify any infringement of the freedom of expression? Important to whom? And by which procedure the Court reached this conclusion? And why would the judges’ policy preferences for a less restrictive law trump the elected representatives’ preferences for a more restrictive law? What is in their education or legal or constitutional position that uniquely qualifies the Supreme Court judges to understand what is reasonable, what is freedom and what level of restriction is optimal to achieve the ‘purpose’ of any law? What if elected representative say that the judge-prescribed ‘less restrictive’ way of achieving the purpose does not achieve the purpose at all, but rather defeats it? The main problem here is that this is not a ‘constitutional’ but rather a legislative dialogue, the one in which the courts do not have any legitimacy to participate (at least in a democracy).
However, in the Hogg-Bushell doctrine, judges are not only uniquely qualified to resolve practical issues of ‘reasonableness’ and ‘appropriateness’ of laws in achieving the proclaimed ends, they also are uniquely versed in philosophical issues. The Charter rights are qualified by the principle of “fundamental justice”. So, the rights to life, liberty and security of the person are not absolute, but apply only insofar as a potential infringement of those rights conflicts with ‘fundamental justice’. What is fundamental justice? That’s up to the Court to define. And how does ‘dialogue’ function in this environment? Hogg and Bushell provide a couple of examples. Here is just one of them. The government enacted the Income Tax Act in which the criteria for issuing a warrant by the Minister of National Treasure were not, according to the Court, clearly spelled out. What happened next? Hogg and Bushell explain: “the Act was immediately amended to cure this and several others constitutional defects. However, the new law was then found wanting on the ground that…[it] did not give to the judge any discretion to deny the warrant in exceptional circumstances where the statutory grounds were satisfied…The Act was immediately amended (ours italic) for a second time to cure this defect” (Hogg and Bushell, 1997: 89). So, the ‘dialogue’ in this instance consisted of two nullifications of legislation by the Court, acting as a self-appointed second chamber of the legislature, and the two quick amendments that the elected legislature made in order to satisfy the demands of the Court. To describe this process as a ‘dialogue’ is possible only if we redefine it to mean ‘giving the orders and fulfilling them’.
The third feature of the Charter allegedly supporting ‘dialogue’ is equally dubious; the equality rights provision. According to the authors, apart from arbitrating on reasonableness, appropriateness, importance, and fundamental justice of the legislation, the Courts should be policing equality, and this also encourages the dialogue with the legislators. If a certain piece of legislation excludes gender, racial, religious or other groups from ‘legislative benefits’ offered by the law, the Court will strike down the law and demand ‘inclusion’. This might or might not be viable as a constitutional principle, but it is not clear what it has to do with dialogue. Here is the example the authors give: “When the Nova Scotia Court of Appeal held that a law extending family benefits to single mothers, but not to single fathers, was unconstitutional, the Family Benefits regulations of that province were promptly modified (italic ours) to allow equal access to family benefits to single parents of both genders” (Hogg and Bushell, 1997: 91). Is this really what “dialogue” means?
But, this is not the end: the discretion of judges does not exhaust itself in them being allowed to interpret the vague notion of the ‘limitation’ of Charter rights: they have, in addition, a discretionary right to suspend any limitation whatsoever, if they do not like the group which is complaining about the right infringement, or do like the groups that benefit from the right infringement. In A-G. Quebec v. Irwin Troy, Chief Justice Dickson warned that “the Court must be cautious not simply to become a tool of better situated individuals to roll back the legislation which has as its object the improvement of the condition of the less advantaged persons” (Manfredi, 2001: 41). Now, the Court acknowledges that it will suspend its own criteria (whatever they might be) for the rights infringement if it finds that the law in question protects the interests of the “less advantaged”. And, needless to say, which laws ‘protect the less advantaged’ and why, that is up to the Court to determine, according to the judges’ ideological and policy preferences. Now we see that judges also claim a superior public policy expertize in addition to moral and philosophical superiority.
Hogg and Bushell do not share Manfredi’s hope that the Supreme Court’s enforcement of the Charter could have ever been ‘interpretive’. Moreover, they assume without much debate (and quite correctly in my opinion) that the task of the judges is to be Philosopher Kings, to mandate settlements of the difficult issues that the vague Charter wording left unanswered: what is ‘freedom’, what is ‘equality’, what is the ‘security of person’, which law is ‘reasonable’, what is ‘fundamental justice’ and so on. The task of the judges is to philosophize and make policy. And this prospect does not bother them at all; on the contrary, they are quite forthright and comfortable with it: “the fact is that the law of the constitution is for the most part couched in broad, vague language that rarely speaks definitively to the cases that come before the courts. Accordingly, judges have a great deal of discretion in ‘interpreting’ the law of the Constitution, and the process of interpretation inevitably remakes the Constitution into the likeness of judges“ (Hogg and Bushell, 1997: 77). James Kelly is equally forthright about the original intent of the Charter as a grant of power to federal judges: “Unlike the American founders, the framers of the Charter did not intend the courts to be the bulwark of a limited constitution through narrow interpretivist review but to prevent the limited constitution through an activist approach to the Charter.” (Kelly, 2005: 13) So, the judges of the Supreme Court are understood as the guardian angels of big government and the custodians of welfare state who stand as the last and most reliable defense against any idea of “limited constitutionalism” and “narrow interpretivism”. Judicial policy making is the essence and the core of the Charter.
Hogg and Bushell’s awareness of this vast discretionary power of the judges dictated by the nature of the Charter is so clear that they even mock the very notion of a neutral interpretation (by putting the word in the scare quotes), the notion on which Manfredi and other constitutional ‘conservatives’ are ready to bet their bottom dollar. The thing is so obvious that one has the impression (strongly enforced by the prompt and widespread acceptance of the doctrine by the judges) that the entire dialogue doctrine was in a sense a cynical rhetorical ploy, a ‘noble lie’, so to speak, necessary to justify the unavoidable policy-making role of the judges to the unwashed masses in a kind of language that they could accept. It’s much more convenient to say that judges and legislators are engaging in a ‘constitutional dialogue’, than to concede that the judges are acting as legislators and policy-makers in disguise without any democratic legitimacy whatsoever.
The understanding of the Supreme Court as a chief instrument of nation building became so predominant in Canadian academia that it almost ceased to be seen as a contentious topic at all. Government by judiciary is seen as a welcome corrective for the inefficiencies of democratic process and the lack of national unity. Dissatisfied with insufficient level of sophistication and enlightenment among the voting public, intellectuals see the justices of the Supreme Court as the Platonic Philosopher-Kings wisely guiding the lesser mortals toward the more prosperous and more humane future. Kelly and Murphy (2005: 219) thus write: “One key function of Canada’s Supreme Court is to ensure that political actors protect and advance the federal character of the constitution by achieving a balance between legitimately national interest and the autonomy and diversity of the federation’s various subnational constitutuences”. This means that the Supreme Court should be in business of defining not only “national interest”, but also the “proper balance” between the national and local interests – obviously, a political rather than a legal function.
Jose Woehrling goes even further than this, by arguing that judicial usurpation of the law-making power is actually a very good thing, in principle: “One cannot deny that withdrawing some issues such as abortion and homosexual marriage, which challenge the truly fundamental values of some people and groups and over which opinion is strongly or even irremediably divided, from the political arena is probably the best solution” (Woehrling, 2001: 232-33). But, why would this be the “best solution”? Should not it be exactly the other way around – democracy is usually understood as a deliberative process in which the most contentious and divisive issues of public policy are eventually settled by majority vote, rather than by being “withdrawn” from electoral politics? Is not that the very essence of tyranny or dictatorship – to have the most contentious issues “withdrawn” from the debate and settled by an unelected narrow clique?
Woehrling provides an explanation and further clarification of this idea, which makes things even more disturbing. Namely, he comments on Morgentaler (1988) in which the Supreme Court sided with the pro-choice groups deciding that the existing laws allowing abortion only for therapeutic reasons was “unnecessary[ialy] restrictive”. The Parliament failed to amend the law accordingly, because it did not have a sufficient majority, but abortion is now allowed because of the Supreme Court’s decision. Whoerling concludes: “This seems to show that, with respect to abortion, a legislative decision has become virtually impossible and only the courts are still able to change the law” (p. 234).
So, not only is the judicial takeover of law-making power viewed to be justified, but democracy itself is seen as legitimate only insofar as it delivers a type of policy outcomes the author approves, such as the liberal abortion laws. However, since voters and their elected representatives often stubbornly persist in the “wrong” policy positions, such as restrictive abortion laws, the enlightened elite does not have any other choice but to suspend democracy and charge the courts with the duty of imposing the “right” policies upon the people. For Woehrling, the answer to the question “what is the optimal policy” is clear a priori, it is just a matter of technique how this policy is to be best effectuated– by the elected representatives of the people or by the unelected judges. If “we” have the majority – all is well and good; if we don’t – then we have the judges.
Ivan Jankovic is has worked as a journalist and public intellectual, and he is currently a PhD Candidate at Simon Fraser University.
[i] R. v. Morgentaler,  1 S.C.R. 30.
[ii] Trop v. Dulles, 356 U.S. 86 (1958).
[iii] Allgeyer v. Louisiana – 165 U.S. 578 (1897).
[iv] Re B.C. Motor Vehicle Act,  2 S.C.R. 486.
[v] Attorney General of Quebec v. Quebec Association of Protestant School Boards et al.,  2 S.C.R. 66.
[vi] Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27,  2 S.C.R. 391.
[vii] For an extensive evidence of the anti-provincial bias in the Supreme Court’s Charter jurisprudence see, F. L. Morton, “The Effect of the Charter of Rights on Canadian Federalism”, Publius, Vol. 25, No. 3, The State of American Federalism, 1994-1995, (Summer, 1995), pp. 173-188.
[viii] For a wide-ranging discussion of the role of constitutional conventions in Canada, see Heard, 2014.
[ix] See the next section.