Canada, Senate Debates, “Motion for an Address to Her Majesty the Queen—Motion in Amendment—Debate Continued”, 32nd Parl, 1st Sess (23 April 1981)
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 2341-2363.
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Hon. Daniel A. Lang: […] Today we have a federal Bill of Rights, and provinces have Bills of Rights. These are ordinary statutory enactments subject to judicial interpretation, but also subject to relatively easy amendment in the event of hardships resulting from judicial interpretation. Many cases before the courts in this area are hard cases, and hard cases make bad law, but that bad law can be quite readily changed by statutory amendment. However, it is a different matter when a Charter of Rights is entrenched in a Constitution. Constitutional change to rectify hardships will be almost impossible, for practical purposes, and ameliorations will have to await possible further adjudication, either through appeal or subsequent litigation in the same subject area.
Of necessity, a Charter of Rights must be cast in words of vague generalities, incapable of exact meaning until judicial interpretation is given to a specific section and with respect only to the specific set of facts then before the court. The accumulation of jurisprudence under this Charter of Rights will take years and years.
The proposed charter will remove fields of jurisdiction from both the federal and provincial governments and place that jurisdiction with the courts.
To give you an idea of the types of litigation we can contemplate, it is interesting to note the kinds of cases currently running through the United States legal system under the U.S. constitutional Bill of Rights. I shall name a few just to give you examples: Pro- and anti-abortion cases; affirmative action cases, the most well known being the Baacke case; sex discrimination cases, particularly in the armed forces and sports; the rights of a suspect in search cases; discrimination in hiring practices, particularly in government hiring practices; cruel and unusual punishment and the death penalty; obscenity, pornography and freedom of speech; rights and responsibilities towards the mentally ill; pro- and anti-birth control cases; group rights to public support of its schools and allocation of taxes for that; union and management rights and hiring practices; environmental lawsuits; jurisdiction in interstate commerce; cases alleging police brutality; welfare investigatory practices; zoning by-laws and discrimination exemplified in single family dwelling requirements; confidentiality of press sources; and use of religions in the schools.
This is going to be a mammoth load for our judicial system to assume. I remind honourable senators that the heavy legal costs in the United States involved in the cases I listed above, apart from those borne by the United States governmentthat is, the costs to a litigant himself generally against the state–are underwritten by the special interest groups who thereby promote and sponsor their cause.
It is well to bear in mind that judicial interpretation under the proposed charter will, as often as not, involve the interpretation and even negation of federal or provincial legislation.
In this regard it is interesting to note that judicial decisions in the United States under their Bill of Rights and, particularly, in the sphere of interstate commerce, have produced a very pronounced swing in their constitutional balance towards Washington. Perhaps for interstate commerce here in Canada you could read “mobility rights”.
One other matter that should be borne in mind is how this expanded role for the courts will affect each individual judge. The courts will, for many years, be in uncharted waters and, until a whole new body of judicial precedent accumulates, judicial decisions being in the amorphous area of rights will be highly subjective, and the social background, preconception and moral suasion of each judge will come into play. Judges will not be determining the law, but making it. Their decisions will not only be judicial, but will also have legislative effect and, indeed, political overtones, and with, as often as not, a federal bias, or provincial or regional bias.
Our courts can quite easily become politicized. We are standing into danger on that score in the current references and appeals arising over this resolution. As in the United States, we may see emerge activist judges and courts, liberal judges and courts and conservative or traditionalist judges and courts. This trend can eventually polarize even the members of a single court, as it has done from time to time in the Supreme Court of the United States.
Bearing in mind that the appointive power over Supreme Court judgeships is entirely federal, it would seem probable that eventually somebody, such as the Senate in the United States, will be required to vet judicial nominees to assure that they meet the political and ideological criteria of the government of the day. I suggest the distinction and reputation of our judges will suffer accordingly.
Recently the Chief Justice of Canada spoke out against choosing judges of the Supreme Court on a geographical basis rather than on the basis of excellence. To that concern will be added a concern that the selection of individual judges will become affected as much by the presumed constitutional and political effects of their supposed interpretations of the charter as by the excellence of their legal and personal qualifications.
I will conclude this by saying that, to my mind, the motivation of the government in pressing for the entrenchment of this charter in a Constitution, a charter that encompasses not only
areas of federal jurisdiction but also provincial jurisdiction, does not primarily arise from concern for people’s rights. We already have a federal Bill of Rights, albeit confined to areas of federal jurisdiction. To my mind, the primary motivation must be to entrench a centralist bias in our judicial system using the interpretative process now to be expanded into the new fields of federal and provincial constitutional responsibility encompassed in this charter. Such a bias will not be impeded by the exclusive federal prerogative over judicial appointments.
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