Domenic Romano, The Political Impact of the Canadian Charter of Rights and Freedoms on the Supreme Court of Canada (1989)

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Date: 1989-09
By: Domenic Romano
Citation: Domenic Romano, The Political Impact of the Canadian Charter of Rights and Freedoms on the Supreme Court of Canada (1989) [Unpublished Thesis at McGill University].
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The Political Impact of
The Canadian Charter of Rights and Freedoms
On the Supreme Court of Canada

«mt ‘ ‘ ‘

By Domenic Romano
Department of Political Science

mac «. —a.v’,,:§ W 5? g,

McGill University, Montreal
September, 1989


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in partial fulfillment of the requirements for the
degree of Master of Arts

(c) Domenic Romano, 1989

A Thesis submitted to the Faculty of Graduate Studies ’

This study explores the political impact of the £hg’gr
of Eights and Ezggdoms on the Supreme Court of Canada. This influence

is contrasted with the judiciary’s historic reluctance to recognize
civil liberties. commencing with the position taken by the Judicial
Committee of the Privy Council and the cautious reaction of the Supreme
Court to the Diefenbaker Bill of Rights.

The treatment of civil liberties under the Chart; r is considered

through a survey of some of the Charter cases addressed by the Supreme

Court of Canada. The political consequences of the Court’s decisions

are examined. Alternative possibilities for the Court’s role in

Canadian society are considered, including the prospects for T
entrenchment under the Meech Lake Accord and other recently proposed

The criticism that too much power is being vested in the T “least
democratic branch” is addressed and the suggestion that the Chargi-
should be located in the “communitarian tradition of Canadian politics”
is appraised. This study reflects upon the theoretical assumptions
which underlie the existence of the Charter, as it evaluates the
political theory behind differing conceptions of judicial
interpretation. This thesis concludes by determining that the Supreme
Court has made a positive political contribution to Canadian society.

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Cette etude a pour but de mesurer l’impact de la Change V
sur la Cour supreme du Canada.
Cette influence s’oppose a la traditionnelle hesitation de la
magistrature face a la reconnaissance des libertés civiles. llinsi. en
témoigne la position adoptée par le “Judicial Committee of the Privy

Council” (Comité iudiciare de Conseil privé) et la reaction mitigée de

la Cour supreme face a la du P.M. Diefenhaker.

Uexplication des libertés civiles dans la Qhaggtg est élaborée
selon un apercu des différents cas examines par la Cour supreme. Les
consequences politiques des diffétentes decisions prises par la Cour
sont analyses. De nouvelles possibilités envisageant le role de la
Cour dans la société canadienne sont considérées ainsi Que la
perspective d’une solide insertiondans l’Accord du lac Meech et dans
diverses réformes.

La critique affirmant que trop do pouvoir a été confié a cette

“institution moins que democratique” est adressée; et la suggestion

que la Qhazte devraits étre placée dans la “tradition communautaire de A

la politique canadienne” est examinée. Cette etude pose d’une part

une réflexion sur les suppositions théoriques qui sont a la base de

\l’existence de la , et d’autre part. une evaluation de la

théorie politique sous-iacente au différentes conceptions de
l’interpretation iudiciare. La conclusion de cette these attribue a
la Cour supreme une contribution politique bénefique a‘ la société

canadienne .


My interest in the political impact of the Canadian Charter of
Rights and Freedoms on the Supreme Court of Canada began when I read
Peter Russell’s “The First Three Years in Charterland”. At the time, I
was a first year undergraduate reading for a conference in Professor
J.R. Mallory’s “Government of Canada” course. The conference was

headed by James Crossland, who was working on an M.A. thesis on the

‘ evolution of Canadian constitutionalism. Mr. Crossland encouraged my

interest in the Charter and has been a generous and insightful source
ever since.

One of the most rewarding memories of my four years at McGil1i
University will undoubtedly be the privilege of studying under
Professor Mallory whose knowledge of Canadian constitutional history is
unparalleled and whose assessments are invariably prophetic.
Particularly I would like to extend my sincere thanks to Professors
John Shingler and Harold Waller for recommending my nane to McGil1’s
Department of Political Science for the M.A. program, and the
department itself for allowing me to serve as a teaching assistant
during my graduate year at McGill.

Professors Elisabeth Gidengil and Fillipo Sabetti provided helpful
advice on a draft of the thesis proposal. Michael von Herff and Karin
Rajani reflected on early versions of Chapters Two and Three, while

Chris Gosnell, Farah Karim, and Mike Lusztig provided valuable

’ assistance. To each of these thoughtful individuals, I am in debt.

Special thanks to Lee Hardy for reading and extensively commenting on
the preliminary draft of the thesis. I would particularly like to
thank Sara Borins for her friendship and encouragenent.

Finally, few words could correctly express the profound gratitude
I owe to my parents, Anna and Umberto Romano, who left an agricultural
community in Italy to start a family in Canada. lTheir labour and
enthusiasa, more than anything else, have made this thesis possible.

Domenic Romano I .McGill University
September, 1989 ‘Montreal, Quebec




‘Can. B. Rev.


C. of R. Newsl.




Dal. L.J.



J.C. or


McGi1l L.J.




Queen’s L.J.


Sask. L. Rev.

Sup. Ct. L. Rev.

U.T. Fac. L. Rev.
U. of T. Press
U.B.C.L. Rev.
Wind. Yearb. Acc. J.
Yale L.J.

te on Abbreviations

Appeals Cases.

.Attorney Genera1.

Court of Appeals.

Canadian Bar Review.

Canadian Bar Association.

Canadian Charter of Rights Newsletter.
Chief Justice.

Chief Justice of Canada.

Canadian Journal. of Political Science.
Canadian Public Administration.
Dalhouaie Law Journal.

Dominion Law Reports.



Judicial Committee of the Privy Council.

Lord (U.K.).

McGill Law Journal.

Master of the Rolls (U.K.).
Osgoode Hall Law Journal.
Ontario Law Reports.
Queen’a Law Journal.

Saskatchewan Law Review.

Supreme Court Reports.

Supreme Court Law Review.

University of Toronto Law Journal.

‘University of Toronto Faculty of Law Review.

University of Toronto Press.

University of British Columbia Law Review.

Windsor Yearbook of Access to Justice.

‘Yale Law Journal.


I 9 O O O O I I O C I I I I I O O C
Acknouledgelents: n 0 so u u an o o o o 9 o 0 o 0 0 0 0 iv
Abbreviations: ……………. .. v
Chapter 1 : Unscheduled Night Qrop . . . . . . . . . . . 1
. II.i. ‘I’oBeIm/estigated . … …. … . . 2
III. Political Dynanice. . . ’. . . . . . . I. . . . 4

IV. ‘ Competing Theories of Judicial Review . . . . 7

V. Conceiving a Constitutional Inage . . . . . . 11

VI. Democracy Reinforcing Review . . . . . . . . 13

VII. Majoritarianisn is Not Enough . . . . . . . . 15
VIII. . Repealing the Charter . V. . . . . . . . . . . 17

IX. Saving the Charter . . . . . . . . . . . . . 19

Chapter 2 : fiistoric Reluctance . . . . . . . . . . i. . . 22

II. Who Guarded Rights and Freedoms? . . . . . . V24

III. The J.C.P.C.: Ignoring the Issue . . . . . . .26
IV. Better to Defer to the Majority’? . . . . . . 29

V. Conunitarian Tradition or Mistake? . . . . . 30

VI. A Powerless Supreme Court of Canada . . . . . 32

VII. Racial Discrimination . . . . . . . . . . . . 34
VIII. What Did the Majority Do? . . . . . . . . . . 38
Chapter 3 : Constitutional Half-Ha: nou_g_.__e. . . . . . . . 42

II Blatant Ineffectiveness . . . . . . . . . . . 47

Chapter 4 . Increased Authoritz . . . . . . . . . . . . . 49

II. The New Constitutional Mandate . . . . . . . 50
III. Contrasting the Bill and the Charter . . . . 51
IV. Learning From the Past . . . . . . . . . . . 52
I V. Rights and Freedols in the Charter . . . . . 54
VI. The Limitations Clause . . . . . . . . . . . 56



us» Chapter 4 : …
an MVII.






Chapter 5





Chapter 6 :I


or», g V IIIs

Judicial Decisions Under Section One . .
Equality and its Restrictions . . . . . .
The Notwithstanding Clause . . . . . . .
Notwithstanding French–Only Sign Laws . .
The Power of Invalidation . . . . . . . .
Judicial Remedies . . . . . . . . . . . .
Affirmative Action . . . . . . . . . . .
Exclusion of Evidence . . . . . . . . . .

Creative Interpretation . . . . . . . . .

Reviewing Executive Action . . . . . . . ~

The Abortion Controversy . . . . . . . .
Organized Labour and the Charter . . . .
The Labour Trilogy . . . . . . . . . .



Towards Entrenchment . . . . . . . . . .
Arriving at Meechlake . . . . . . . . .
Changes to the Supreme Court of Canada .

Tradition and Continuity

Decentralizing the Appointment Process .

Controversial Procedure and Alternatives

Dreaded deadlock
One Loop Hole to Consider . . . . . . . .
Public and Professional Scrutiny . . . .
Responding to Meech Lake . . . . . . . .
Removing the Notwithstanding Clause . . .
Financing Court Challenges A

I I O O O Q 0


Unfinished Artwork . . . . . . . . . . .

Democracy andjthe Judiciary . . . . . . .

Connunitarianism . . . . . . . . . . . .


I O O O O I I C O O 0 O



» 99







Chapter 6: . . .

IV. The Necessary

V. Conclusion .

Bibl iography: .
Journal Articles: . .
Reports: . .
Periodicals: . .
Theses: . .
Lectures: . .

Reporting Services:


Judicial Decisions:
United States:











Chapter One

Unscheduled Night Drop

“Sad quis cuatodiet ipsoa Custodes?”
R Juvenall
On the field of Runnynede, King John signed the first great
charter in 1215. The Magna Carta was the initial step toward English
constitutional government. Through that historic document, the Crown
formally acknowledged an unprecedented. albeit modest, limit on its
power. Civil liberties were conceived. but they would remain in
embryonic for: for sany years.i
As a response to the use of arbitrary methods by the Stuart kings,
the British Parliament issued the Petition of Right in 1628. Accepted
but later disregarded by Charles I, the petition provided the roots for
the terms and conditions later set out in the faaoua fi;11_QL_Rightg
which allowed Willis: and Mary to accede to thethrone after the

éfiglorious revolution in 1689. Civil liberties would be born.

Ithas now been three hundred years since the first bill of rights
was enacted. The 1689 legislation abolished the royal power to suspend

laws, established free election, and defined citizen rights. Issued
“;hts «I ..g and

one hundred years before France’a Ieclarat . %g

I serving as a model for the American Bill of Rights, the 1689 Bill was

to have a remarkable impact on the history of democracy and civil

King John’s successor traveled to Ottawa in 1982, to sign Canada’:

own charter. On April 15, Queen Elizabeth II signed the Qggstitutign
Apt, 1983 “patriating” Canada’s principal legal document and
“entrenching“ rights and freedoms. The parchnent accepted at Runnymede

had slightly limited the monarchy; the C i=rT.n iv te v’-: ‘1=:>1-

Ereedomsz provided a check on the authority of governsent, acknowledged ’

lflatires VI, 1. 347.

‘Part I of the . Schedule B of the Cum
Act 128; (U.K.). 1982. c. 11 [hereinafter the Qhgrterl.


‘ Its:





positive rights, and empowered courts to grant remedies. The
recognition and preservation of civil liberties in Canada was moved to
a new domain .
“As liberty increases,” observed Alexis de Tocqueville a sesqui~

century ago, “the prerogatives of the courts are continually
enlarged.”3 Since the adoption of The Constitution Act, 1982, the role
of the judiciary in Canada has been enlarged significantly. The act
has substantially altered the function and mandate of the Supreme Court
of Canada and concomitantly led to the considerable enhancement of that

institution’s political significance.

II ‘

This study will explore the political impact of the Qhagtgg on
the Supreme Court of Canada. Since the Charter has come into force,
politicians have increasingly deferred to the decision-naking power of
the Court, especially in politically sensitive areas.‘ The project’s
purpose will be to determine the Court’s proper position in response to
this development. c C C

‘This chapter will examine the theoretical assumptions which
underlie the existence of the Charter and the political theory behind

3Alexis de Tocqueville, Qg;gg;agy;in_Age;iga J.P. Mayer, ed. and

George Lawrence, trans. (Garden City, NY: Doubleday, 1969), p. 149.
Originally published in 1835. W

‘Lee, for instance, the abortion cases (R. v. fiorgentaler [1988] 1

S.C.R. 30, figrowski v. A.-G. Can., as well as the recent appeal by
Chantal Oaigle against a decision by the Quebec Court of Appeals
granting her former boyfrienf Guy Trenblay an injunction preventing her
from having an abortion). and the Quebec sign language cases (Qevine v.

v Qggpgg [l988} 2 S.C.R. 790, Ford’v.jQp§bec [1988] 2 S.C.R. 712).

Although in the later instance the notwithstanding clause was invoked,
the political hot potato was thrown to the Court before being ’

F.L. Morton has noted that through the reference procedure, there
appears to be trend toward “issue avoidance” by elected officials. See
FKL. Morton, “The Political Impact of the Canadian Charter of Rights
and Freedoms,” C.J.P.§, XX:1 (March 1987), p. 51. Michael Mandel has
reiterated Prof. Morton’s concern. Cf. M. Mandel, ‘ fra, note 18, p. 63.

.—…——…»—..-.«—~—— «….-…………. .—-. .-….-.


differing conceptions of judicial interpretation, The works of both
Canadian and American scholars will be consulted.

Traditionally the judiciary has been unwilling to question the
wisdom of the legislature and has deferred authority to the people’s
elected representatives. The second chapter will scrutinize the I
courts’ historic reluctance to recognize civil liberties through the
decisions of the Judicial Committee of the Privy Council and the
Supreme Court of Canada. This section will begin to determine whether
our history of legislative supremacy has adequately protected.civil ,

Chapter three will present a brief examination of the Supreme
Court’s experience under the Bill of Rights and recall the commentary
on the inclusion of civil liberties into the Constitution. By
considering the protection of rights and freedons in Canada before the
Charter, the recent conclusions of Michael Mandel will be exanined.5

S A survey of the Charter cases addressed by the Supreme Court of
Canada will be presented in the fourth chapter. The treatment of civil
liberties under the Charter will be considered, as will the political
consequences of the Court’s decisions. By reflecting upon some of the
judgments rendered during the past seven years and by assessing the
public and political responses that the decisions haye evoked, this
study intends to illustrate that the Court has become one of the most
important political institutions in Canada. , S

The fifth chapter will assess alternative possibilities for the
Supreme Court’s role in Canadian society and will conclude by focusing
on the prospects for entrenchnent under the Meech Lake Accord and other
recently proposed reforms.

A consideration of how changes in the Supreme Court’s mandate

light affect the theoretical underpinning of Canadian political society,

will be undertaken in the final chapter. The criticise that too such

power is being vested in the “least democratic branch” will be

iaddressed and the suggestion that the Charter should be located in_the

”comnunitarian tradition of Canadian politics” will be apprised.

slnfra, note 18.

.Due to its increased authority under the ghagtgr, the Supreme
Court is rendering decisions that would have been iapossible just eight
years ago. As a result, the Court has cone under strict scrutiny tron
scholars of various disciplines and has been the subject of nunerous

garticles in the popular press.“

To examine the activity of lawyers,.judges, and courts under the
Qhartgr is to exanine politics and the dynamic of power. wln his most
recent book, Peter Russell affirms that political power is exercised by
the judiciary and that courts are part of the machinery of governaent.7
Elsewhere, Prof. Russell reminds us that judges are public office
holders who are authorized by the “coercive powers of the state.”3 It
is this connection to the “coercive eleaent” which gives judicial
decision-asking its political character.l P _

It is best kept in aind that rights and freedoas are political
concepts in theaselves. As Stephen Cohen of the University of New
South Wales has recently affirmed, civil liberties are far fro: being
natural rights. “It is a decision or a conlitaent not a discovery,”

‘The recent analysis varies in depth and approach. An historical
account has been provided by Jaaes Snell and Frederick Vaughan, in IQ;
figpgegg Qggrt gf Cgggga: fijstory of the Institution (Toronto: U. of T.
Press, 1985), [hereinafter H’st t e s ‘tut’ ]. Peter Russell
has extensively reviewed the Court from a political perspective in
various works including Ihg_Jggjg1gg1;in_Q;gagg (Toronto: U. of T.
Press, 1987), as has Patrick Monahan in ‘tics st’ ti n:

a er e a is nd he re e r (Toronto: Carswell,
1987), [hereinafter iti s d t C s i it n]. Many other
scholars are exaaining the Court’s activities (see bibliography), while
newspapers throughout the country have been frequently reporting on the

Justices, their judgments, and the governaental and public reactions to

‘ . ssuzza. note 6. 12-3-

°Peter H. Russell, “The Paradox of Judicial.Power,” Queen’; L.J.
XII (1987), pp. 424-425.


asserts Prof. Cohen, “which is responsible for something being regarded

as a civil liberty.”’

It has sen conceded that the Qhpgtez presents the possibility of
a new paradigm in which the judiciary will assume a central role and

equa1 responsibility with Parliament and provincial legislatures in the

foraulation of public policy.1° (For his part, Peter Russell has
concluded that the Supreae Court’s function in the governance of Canada
“should now be viewed as of the same importance to Canadian political
science as the performance of the United States Supreme Court is to
students of American Politics.”11 Elsewhere, Professors Rainer Knopff
and F.L. Morton have suggested that the Court has become a
nationalizing institution by interpreting and giving life to a
constitutional document which encourages Canadians to perceive
themselves as “bearers of rights that have no local boundaries.”13
This was apparently the intention of the Trudeau government which
fought vigorously for the “patriation” of the Canadian Constitution in
the face ofia separatist threat from Quebec in the latter part of the

The Charter has been described as a new, third pillar of
constitutional government in Canada.13 Others have emphasised the

document’s capacit to strengthen democracy. David Beatty, for

‘Stephen Cohen, “The Significance of ‘In the Name of Civil

Liberties,’” Law and Ehilosgphy VII (1989), p. 393.

1°Patrick Honahan, “Judicial Review and Democracy: A Theory of

: Judicial Review,” Q.B.C.L. gev. XXI:1 (1987), pm 88.

11Peter H. Russell, “The Supreme Court in the Eighties – Wrestling

with the Charter,” in Paul Fox, ed. Eglitigs: Cangda.6th ed. (Toronto:
McGraw-Hill Ryerson, 1987), p. 151. S ‘

13″Nation~Building and the Canadian Charter of Rights and ~
Freedoms,” in Alan Cairns and Cynthia Williams, eds. ggngtitptignaljgpg

Citigenship and Culture (Toronto, 0. of T. Press, 1985), p. 144. More
recently, Garth Stevenson has also predicted that Supreme Court and the
Qh_a_r_t_:_e_g will unite Canadians, rather than “reinforce their traditional
obsession with federa1~prcvincia1 relations.” See Stevenson,
Unfulfilleg union 3rd ed. (Toronto: Gage Publishing, 1989), p. 69.
13Alan Cairns and Cynthia Williams, “An Outline,”
— ‘ h ‘ » aun__.ra note 12. no

—.——u-r:1.v-.1 -in ,p

instance, has written that “the i could turn out to be the most
important event in the democratization of the country since
Confederation.”“ Yet, more cautious observers and sober octogenarians
may ask theaselves if this ismerely academic rhetoric lacking in
substance. There are those who doubt if such a profound change could
have occurred in Canadian society on a day when “no one cheered.”15 ..
“The history of scholarship is a record of disagreements,”

explained former American Chief Justice, Charles Evans Hughes, “when we a

deal with questions relating to principles of law and their
applications, we do not suddenly rise into a stratosphere of icy
certainty.”1° This is no less true in Canada, where certain scholars
have gone far out of their way to condemn the Chggt 1;. Harry Glasbeek
and Michael Mandel, for instance, have explained the document is an I
attempt to avoid the enhancement of “real democracy” by offering a
formal substitute.” Recently, Prof. Mandel has argued that the
existence of the Charter and what he terms as the subsequent “legaliza-
tion” of politics have brought Canada back to the time when democracy

was a dirty word. “Pleading,” claims Michael Mandel, “is not a
democratic fora of discourse.”15 Prof. Mandel would have the ghggtgr

“David Beatty, “Charter could be the key to greater. democracy,”

4I1L&u (April 7. 1937)-

15See the introduction to Keith Banting and Richard Simeon, And No
,Qn_e___C_l;e_e_;-_e_d (Toronto: Methuen, 1983), pp. 2-26. \

“Speech to the Aaerican Law Institute, May “7, 1936.

“Harry J . Glasbeek and Michael Mandel, “The Legalization of

Politics in Advanced Capitalism,” _§nfiig II (1984), pp. 84-

“Michael Mandel, C ar ‘ an sa i n f
&l (Toronto: Hall and Thompson, 1989). Prof. Mandel

proclaims that ‘pleading’:
dates form a time when democracy was a dirty word. Expanding

that fora of discourse to more and more corners of life as
the Charter does, is in effect seeking to return to that
time. I do not like the idea of going backward in history.

At pp. ix-x [hereinafter l~

– v- f’¥H”l?I-“I9-|Q’\l1’nIars—rma-aagcanrww-.\,.. …… .‘ _ _ ______



“wither away” into disuse or, to use his own impudent expression, be

made to “seem absurd and irrelevant like the Monarchy or the Senate.”19

Nevertheless, it has been recognised that the vague provisions of
the Qhgrtgz invite judicial policy-making.3° The Supreme Court’s new i
remedial power and explicit invalidation authority have substantially

changed its role. As a result, Andrew Petter and Patrick Monahan have I

urged the Court to abandon its “facade of neutrality and objec-
tivity.”31 Prof. Monahan has ultimately warned that:

The enactment of the Qmggggr is like an unscheduled ‘night drop’,
in which Canada7s judges and lawyers have been parachuted unaware
into the battlefields of political theory, without weapons, and
with no knowledge of the deployment of the contending armies.33

This chapter intends to visit these “battlefields” and gauge the

strength of the cross-fire.

H.111?! , – g – _ .. – :1.
The open—ended provisions of the Charter raise many questions
about the proper scope of judicial review. In the poetic legal style
of old, Lord Sankey articulated his now famous metaphor: “The B.N.A.


v Act planted in Canada a living tree capable of growth and expansion

within its natural limits.”33 Yet, this dictum has been questioned
recently by Richard Devlin, who has submitted that the “living tree”

191bid., p. 311. Prof. Mandel remarkably makes this proposal two
pages after he has equated the Charter to “nitroglycerine” – something
that surely will not wither away.

3°For a discussion on the role of the courts in judicial policy~
making see the fourth chapter of Jases Crossland’s, Ihg_EgLg_g£_thg
Can:-‘:o – ts ‘, t1- vo. – ,-‘ C. .~ian .:nst’ _tf-.- i, (M.A.
Thesis, McGill University, March 1987).

31P..Monahan and A. Petter, “Developments in Constitutional Law:

The 1985-86 Term,” figp. Qt. L. Eev., IX (1987), at p. 180. The

associate professors claim that: .
If the Court is truly interested in developing a purposive

approach to the Charter, it must begin by acknowledging that
the Charter is a political document – one that requires the
courts to assess the olicy of legislation.

zzflglitics and the Qgnstitutiop, gupgg, note 6, at p. 54.

33 wards v. A.-G. Can, [1930] A.C. 124, at 136.

metaphor is “suggestiverather than infornative.”“ According to Mr.

A Devlin, we are still left with the question of whether the Constitution

is “to be interpreted as a rigid and hard red oak, or as a flexible
willow.” According to Peter Hogg, however, the problem of legitinizing
judicial review is a such less serious problem in Canada than it is in
the United States.” For Prof. Hogg as. 1 and 33 provide significant”
constraints on the Canadian judiciary.“ Nonetheless, in Patrick
Monahan’s “battlefield”, Mr. Devl1n’s army of skeptical scholars is on
the rampage. A

Peter Russell, a pioneer in the political analysis of the Canadian
judiciary, has always urged us to reject the view that the judicial A
function is technical or non-political.” “A particular judicial
decision,” J .R. Mallory once observed, “does not take place in a vacuun
in which the result is a sisple arithmetical conclusion from purely
abstract ideas.”33 Likewise, Prof. Russell understands that the
judiciary “puts flesh on the bare skeleton of the law and in so doing,
shapes the substance of the law.”39 8

However, many political pundits have begun to take aim at
established notions of judicial interpretation. For instance, Richard
Devlin has accused Prof. Hogg of engaging in unfounded positivism by

A Iaking the “fundasental error of severing the subject from the object,

“Richard F. Devlin, Wentriloquisn and the Verbal Icon: A
Consent on Professor Hogg’s ‘The Charter and American Theories of

Interpretation,” Q.H.L_.,1. XXVI (1988), p. 8.

“Peter Hogg, “The Charter and American Theories of Judicial
Interpretation,” _(L_fl_._@_._ XXV (1987), p. 88.

“1_l;j_d., p. 88-89. A discussion of ss. 1 and 33 can be found in
Chapter 4 of this thesis. . ‘

“Numerous scholars, including Noel Lyon, have expressed a similar
belief. According to Prof. Lyon, since the Constitution “now clearly
derives its authority for: the people … it is no longer acceptable to
assert that neaning can be found in the language alone.” See N. Lyon,
“An Essay on Constitutional Interpretation,” Q,_fl,_L_,_,L,_ XXVI:1 ( 1988) 95,
at p. 123.

33J.R.. Mallory, §gcia; Credit and the Eedegal Bower in Canada

(Toronto: University of Toronto Press, 1976, c. 1954), p. 181.
“Peter Russell, supra, note 8, p. 428.


V the interpreter from the text.”” Drawing on the thought of Mark
Tushnet, Mr. Devlin has rejected the distinction between adjudication
and legislation by arguing that there is no difference between choices
aade by the judiciary and those made by the legislature.“ .

Ronald Dworkin would be ill at ease with Richard Devlin’s
characterization of adjudication. According to Prof. Duorkin, it is
proper for courts to review principle but not policy. The professor of
Jurisprudence at oxford explains that shile policy goals are to be
considered by legislatures, the Courts must ensure that principles of
justice are respected.“ ) A

An approach that is much sore constraining than Ronald Dworkin’s
is advocated by Alexander Bickel. According to Prof. Bickel, judicial
review should only affirm principles that will gain general assent in
the foreseeable future. He terms this concept “the obligation to
succeed. “33 In Prof. Bicke1’s view, the Court should provide a
”continuing colloquy” by engaging the public and the legislative branch
in conversation.“

In the Canadian context, Anne Bayefsky has adapted Alexander
Bickel’s model by urging the judiciary to adopt ”passive virtues” in
postponing judgments until public approval is reached.” In Prof.
Bayefsky’s application, judicial wisdom aust be “inforned by popular

“Richard Devlin, u re, note 24, p. 10.

31Ibid., p. 17. See also Hark Tushnet, Red, Whjte pm Blue: A

Critical Analysis of Constitutignal Lgw (Cambridge, MA: Harvard
University Press, 1989), [hereinafter ].

“See Ronald Dworkin, 1&iE (Cambridge, MA:
Harvard University Press, 1977); A Matter of Principle (Cambridge, MA:
Harvard University Press, 1985); 1_._a3__’__s_£;pi_g_e_ (Cambridge, MA: Harvard
University Press, 1986).

“Alexander Bickel, Ihe Leggt Qangergus firggh (New York: Bobs»

Merrill, 1962), p. 239.

“Alexander Bickel, T reme Co t d r s

(New Haven, CT: Yale University Press, 1978), p. 91.

35A. Bayefsky, “Judicial Function under the Canadian Charter of
Rights and Freedoms,” in Anne Bayefsky, ed. V s

“~'”” Eractice (Edlontonz Acadeaic Printing & Publishing, 1988), pp. 156-157.
Prof. Bayefsky sets out 5 tools for delaying decisions to encourage dialogue.


understanding,” court decisions must be put off until public opinion
finally adopts morally correct answers.5‘

Yet, other scholars say be found on the other end of the
theoretical battlefield. For instance, Michael Perry insists that
judicial review exists to allow judges the opportunity to provide moral

a guidance when people’s elected representatives do not.” In Canada,

Michael Hartney has argued that Charter has the moral purpose to
protect certain fundamental moral rights and to treat it otherwise is
to nullify its effect.3° Therefore, Mr. Hartney argues that the
document requires judges to engage in moral philosophy to determine the
limits of the rights it embodies. He prescribes two alternatives:
“either Chsrter interpretation is to be considered as moral philosophy
and to be done by people who are trained in this area, or there should
be no Charter at all.”39

some have ignored the battle lines to claim that the “contending
armies” are fighting a war over the legitimacy of judicial review which
no one can win. For example, B.L. Strayer has reaffirmed Laurence
Tribe’s declaration that attempts to legitimise constitutional choices
with a single theory or franework are “futi1e.”‘° In a similar vein,
Joel Bakan has rejected attempts to establish foraal grounds for the
legitimacy of judicial review in Canada. Prof. Bakan proclaims,”

Notwithstanding the pretensions of intellectual rigour and
analytical depth, constitutional arguments are really just
appeals for faith in the institution of judicial review and,

3¢1p;g., p. 162.

37Michael Perry, The Constitution, Ihe Coprts, ggd flumgg Rights

(New Haven, CT: Yale University Press, 1982).

3‘Michael Hartney, “Cosmentary,” in Legal Thegry Meets Legal

, supra, note 35. ‘

3°1p;g., p. 206.
4°B.L. Strayer, “Constitutional Interpretation Based on Consent:

Whose Consent and Measured When?” in Bayefsky, ed., Leggl Ihggry Meets

L§xgl_££agti§g.gupgg, note 35, p. 187. See also Laurence Tribe

Qoggtitutional ghoices (Cambridge, MA: Harvard University Press, 1985),

pp. 3-8. Prof. Tribe advocates the abandonment of such pretense and
endorses “the process of replacing arrogant certitudes about our often
unshared paste with a more open search for a shared future.” at p. 267.

IVE-*’ll’x’*t \.~ao-$1 – ~

N’V‘I§r-‘VF 1 ,.

-r~¢vv- iv)-xavvun fir.‘

FI ‘U? ,..,f



correspondingly, obedience to the outcomes of that instituw
tion.‘1 a

Hi I luv;
One of the most original Canadian theories of judicial

interpretation has recently been advanced by Willis: Conklin.‘3 By
uniting concepts of literary theory, political philosophy and law,

Prof. Conklin has situated himself far beyond the “battlefield”
described by Monahan. According to Hillian Conklin, a constitution is
not composed strictly of a text, not a set of doctrines, nor values,
nor customs. He avows that the Constitution is, instead, an ilage. To
understand the law of a constitution, Conklin asserts that “we must
identify and consider the presupposed image of a constitution which
judges, scholars, lawyers or political officials share in their
discourse.”43 This image “rebounds off a text” and “joins a lawyer to
his/her past and projects his/her into the future.”44 The images in
question are not values, nor aetaphysical constructs, nor models, nor
theories. Instead, Prof. Conklin explains that an image of the
constitution originates from within the conscious and subconscious of
the individual judges and is foraed through the legal profession’s
fornal and informal education, personal experience, and childhood
rearing.‘5 Ultimately, these images “serve as a prism through which

I 1.

the lawyer/judge understands the world.”‘°
Prof. Conklin advocates a teleological rather than rationalist

interpretation of the Constitution. Borrowing fro: the language of

41Joel Bakan, “Constitutional Arguments: Interpretation and
Legitiaacy in Canadian Constitutional Thought,” g,u,;,1,,xxv1I:1
(1989), pp. 123-193, at p. 193, i

‘zflillial Conklin, l a:n,s,,
Toronto Press, 1989).

43;p;g., p. 4.

44;g;g., p. 4~5.
45;g;g., p. 67.
46;§;g., p. 67.

‘ iti‘; (Toronto: University of


Aristotle, he enunciates the belief that the Qhggtgg raises “deep

issues of Goodness”, in addition to those of social and cultural

practice, that are best understood using the constitutional image first
developed by Ivan Rand during the 1950’s.‘? He expands on Juatice
Rand’s conception of “citizenship” established in ggggagg1;1_gg
,nup]g§gi_.45 For Prof. Conklin, Ivan Band’s teleological image of a
constitution is superior because it entertains issues of “ideal-
directed” theory and social practice by making theory and practice
socially legitimate and epistemologically valid issues.49 Furthermore,
Prof. Conklin insists that the Charter “embodies a forward-looking
image of a constitution” which makes the backward-looking or
contemporary focus of the historicist and rationalist approaches
inadequate.5° In his understanding, the Charter triggers “deep meta-
issues of theory and a piercing scrutiny of social/cultural
practices.“51 p C
While many other savants in Patrick Monahan’s “battlefield” are

relying on the philosophy of John Rawls53 and the properties of
liberalism to hurl their ammunition, William Conklin peers over the
horizon from the plateau of Aristotelian thought. Prof. Konahan
himself appears to want none of this. Nor does he seem impressed with
Canadian scholars who are attempting to articulate theories of judicial ‘
review shich borrow from the ideas of American scholars such as
Laurence Tribe, Alexander Bickel, Michael Perry, or Ronald Dworkin.

47Ivan Rand was one of the most respected jurists to ever sit on
the Supreme Court. Although reputed to be an extreaely companionate
man, during oral arguments Mr. Justice Band was described as the judge
“most feared by counsel.” One observer was prompted to note that Rand
J. “used the word ‘why’ like a machine gun.” See flistggx of the

institution. supra. note 6. p. 197.

‘3[1959] S.C.R. 121. _
“laases_s£_a.£2nstituiion. aunts. note 42. p- 217-

5°1hid., p. 129. l

511g_;_4., p. 217. ‘ p

53Many modern rights theorists depend upon justifications provided

by John Rania’ now classic, A Iheggy of Justice (Cambridge, MM; Harvard
,University Press, 1971). T ‘ v

p American constitutional theory.

.ilmL§LL§d LS xltl ‘u‘.C3.A;

I Many Canadian intellectuals have acknowledged the benefit of A
exmining American constitutional jurisprudence to help illuminate some
of the unlit terrain that lies ahead under the lhagtep. However, Prof.
Monahan has warned that:,

General Motors may be able to ignore the Canadian-American
border, but Ronald Dworkin cannot; approaches to judicial
review in Canada must necessarily differ from those in the
United States.53 I s

This intellectual tariff barrier is an interesting idea, especially
considering that Patrick Monahan’s own theory depends heavily upon
American, John Hart Ely’s concept of “representation reinforcing
review.”54 According to Dean Ely, judicial review should be limited to

“questions of participation, and not with the substantive merits of the

political choice under attack.”55

For very similar reasons, Prof. flonahan has criticised the Court’sl

interpretation of the Charter. The Osgoode professor of Law has
attempted to establish the grounds for divorce between Canadian and
This is by no means a novel idea.
Indeed, throughout the years of debate on whether the ghaptgr should be
“entrenched”, many commentators expressed the fear that the Canadian
yconstitution might become merely “what the judges say it is.”5‘ Some
deplored the idea of a constitutional bill of rights and saw it as a i
subtle means to introduce American individualism into Canadian

society.57 Others disapproved of the absence of originality within the
propsals. Commenting on attempts to incorporate some of the
53’-cities . d e Co stit tfrn, ggpga, note 6, p. 95.


, F5

55Expression of Associate Justice, Charles Evans Hughes, of The
United States Supreme Court. Speech at Elmira, New York (May 3, 1907).

57For arguments against a charter see Douglas A. Bchneiser, “The
Case Against Entrenchment of a Canadian Bill of Rights,” B§l¢“LL4lL I
(1973), pp. 14~50; and D.V. Smiley, “The Case Against the Charter of

Human Rights,” Q.1.£.§.VII:3, (Sept. 1969), pp. 277-291.

5‘Degggragz and Distrust (Casbridge, MA: Harvard University Press,



principles of the American Bill of Rights into the Canadian Constitu-
tion in the 1960’s, Donald Creighton complained that “imitation and
plagiarism had becoae deep-seated Canadian inatincts.”53

Now, in the late 1980’s, Patrick Honahan appears to have cone to

the defence of the Charter against some nationalist academics who still

want no part of it.59 Prof. Monahan has emphasised the differences

ibetween the Charter and Anericwn Bill of Rights by locating the former

within “the coaaunitarian traditions of Canadian po1itics.”‘° Citing

Alasdair MacIntyre’s conception of a “living tradition,”51 Prof.

eflonahan has deteruined that rights-based Iodels and other American

individualistic theories are inadequate for judicial review under the
Canadian gharte . According to Patrick Monahan, the individualist, the
conmunitarian, and collectivist aspects of the Canadian cultural
tradition IU8t be accoaaodated in constitutional adjudication. To
achieve this, he advocates a theory of judicial interpretation which
defers to denocracy.i “Judicial review in Canada,” declares Prof.
Monahan, “must be more than another branch-plant operation of an
Alerican head office.”‘3

A closer look at Patrick flonahan thesis, however, may well reveal
that he has constructed an affiliate operation himself. Prof. Monahan
reasons that the acadenic critique of Dean Ely’s theory in the debate
among Aaerican scholars leaves open the possibility that it will “be .
relevant and persuasive in another context.”‘3 Prof. Monahan provides

53Donald Creighton, Cggaga’s Eizst Qegtggy (Toronto: Macmillan,

1970), p. 356.
5’The lost vociferous exponent of this group is Michael Handel,

see Legalizatign gf Eolitics, supra, note 18. See also Glasbeek and
Mandel, §_l,§£_I_‘_§, note 17. » A I
‘“ . amiss. note 6. 12- iv-

g°1See Alasdair Haclntyre, After Virtue, (Notre Dane: U. of Notre
Dame Press, 1981), p. 206-207. For a lore detailed explanation of

context based traditions of rational inquiry and a stinging critique of

Rawlsian individualisa, see HacIntyre’s flhgge Justice? which

Rationality: (Notre Dane: U. of Notre Dame Press, 1988).

‘Z ‘P’ d th stitu ‘o , supra, note 6, p. 96.
‘3EQ1itig§ and the Cgnstitution, supra, note 6, p. 99.


two general principles to legitimize his framework of Canadian judicial
review. The first is “a right of equal access to and participation in
the political process;” the second principle is the Iaxiaization of C
“openness and the possibility of revision in social life” in order “to

censure that all social arrangeaents are subject to Ieaningful debate

and transfornation through the political process.”54 This process—
oriented formula of judicial review enucleated by Prof. Monahan, based
on coamunitarian rather than counter-aajoritarian principle, is a
reforaulation of John Hart Ely’s thesis in Canadian society. Dean Ely

appears to be the chief executive of Patrick Monahan’s branch plant.


At this point it is necessary to ask an essential question. What
does it mean to fall back on the so—calledl”colnunitarian” tradition of
Canadian politics as Prof. Monahan suggests? The arguaent for a
retreat into our collectivist past has frequently been aade under the
blinding seduction of nationalism, yet, in the next two chapters the
alleged benefits of the ”coanunitarian” tradition will be critically
evaluated.i First, however, the nature of Prof. Monahan’s process~
oriented schene is worth further examination.

The deaocratic approach to judicial review has been already
rejected by Peter Russell because it “rests on a philosophy of coral
relativism that is difficult to square with the essential adjudicative
function.”55 However, as Laurence Tribe has done with the work of Dean
Ely, it is not difficult to illustrate in Prof. Monahan’s case that a
“connunitarian” theory of judicial review claiming to chanpion

democratic participation, and procedure rather than substance, is

‘4IbiQa, pa

55Prof. Russell explains that questions “of federalisa, of
procedural due process rights, of Iinority language rights and
aboriginal rights cannot adequately be dealt with ~ cannot be reduced w
to questions of access to democratic politics.” See P. Russell, supra,
note 8, pa 432. i


advancing a substantive value judgement in itself.“ In fact, a
practical response to the theories of J.H. Ely and Prof. Monahan is

provided by William Conklin:

to suggest that efficacy or najoritarianisn can outweigh
constitutionalized huuan rights is to lower the latter to the
plane of saying that “anything nay count” as an allowable
exception to the rights. The text would then become .
redundant as would the interpretive process triggered by the

For Prof. Conklin, as undoubtedly for Michaelflartney, the text of the

constitution suggests “essentially~contestable concepts” that are ”rationally
indeterminate.”°3 According to Prof. Conklin’s persuasive explanation,
this indetermination may only be superseded by adopting a teleological
image. Such an image cannot develop under a theory of “democracy
reinforcing review.” William Conklin’s interpretive understanding appears
richer than Patrick Monahan’s. g

Furthermore, democracy does not necessarily equate solely to
majority rule. For instance, EL. Strayer has pointed out that federalism
itself is at times anti-majoritarian.59 Judicial review of ultra virg§
legislation can invalidate the will of the majority supporting an impugned
enactment. Judge Strayer has noted that true democracy does not leave
every decision to majorities but attempts to maximize the scope of
decision-making for the individual.” The danger of using the courts
merely to reinforce political representation should be self evident. The
point has been underscored by John Whyte:

freedom-loving and equality-—lovix:.g governments can lose sight
of the consequences, for some people, of legislative schemes.

5‘Laurence Tribe, “The Puzzling Persistence of Process-Based
Constitutional Theories,” ale L,g, LXXXIX (1980) 1063.

J 37[nages of a Constitution, su ra, note 42, p. 249.

pa .

59B.L. Strayer, The Qagggigg Qgstitption and the u ts: e
Euggtigg and Scope 0; Judicial Review (Toronto: Butterworths, 1983), p.

7o.I.!3.;i…d.- 9 P- 55


The role courts play in these situations is not
superfluous.71 .

Moreover, Bernard Siegan has properly noted that “the relationship
between the will of the najority and the passage of laws is often
highly tenuous.”73 Peter Hogg has joined in the rejection of Prof.

Monahan’s assertion that the Charter’s purpose is to increase

, democratic participation. Prof. Hogg reasons that each section of the

Charter must be interpreted as serving its own specific purpose.73

In the United States, Mark Tushnet has convincingly argued that
Dean Ely’s theory is “flawed by its inability to specify what really
facilitates pluralist politics, and by its acceptance of the existing
system as a reasonably well functioning one.”74 The ease observation

can be made with respect to Patrick Monahan’s idealized view of the

.opportunities for popular participation in the Canadian political

process.75 Chapter Two will examine a few instances where citizens
have been discrininately excluded from being afforded these


In 1978, the Committee on the Constitution of the Canadian Bar

iAssociation recommended the entrenchnent of a bill of rights,

explaining that:

It would inculcate in all citizens, young and old, a
consciousness of the importance of civil liberties and

71John D. Whyte, “Legality and Legitiiacy: The Problem of
Judicial Review of Legislation,” Queen’s L.J. XII (1987), p. 12.

73″Conmentary on Monahan Paper,” u.B.C.L. Bev. XXI:1 (l987), p. 169.
?3Peter Hogg, supra, note 25, p. 113.

74geg, White and Blue, supra, note 31, p. viii. For a socialist
critique of J.H. Ely see Mark Tushnet’s second chapter, “The . ,

Jurisprudence of Democracy,” pp. 70~107.

75Prof. Monahan’s entire enterprise is based on the premise that
Canadian “democratic” institutions are, indeed, democratic. This
inplication is by no means uncontestable.. For additional difficulties p
with Monahan’s thesis on this score see Joel Bakan, u ra, note 41, pp. ‘
184~l85. ~ ‘


provide an authoritative expression of the particular rights
V and liberties our society considers fundamental.7‘

However, shortly after the Charts: came into force, Donald Smiley
contested the docuIent’s existence by arguing that Canadians were
essentially Hobbesian and not prepared to accept the thesis that
government exists to protect pre-existing rights. “Nobody,” said
Professor Smiley, “has ever becone a convert to Christianity through
reading the Apostle’s Creed. To impose a ghagtgg that one would expect
will get embedded into the consciousness of the people, who operate
under certain contrary predispositions, will not ‘wash.’”77
Indeed, to a certain extent, D.V. Smiley has been correct in his

prediction. With some, the Qhagter has clearly not ‘washed.’f Michael
Mandel, for instance, has attempted to expose the document as a means
to avoid enhancing democracy by “giving merely a mense of enhance-
ment.”75 Prof. Handel’s self-admitted ‘conspiracy theory’ contends


Specifically, it is possible to understand the legalization
of politics in the context of three inter-connected

a contemporaneous phenomena: the expansion of the suffrage,
,the deep involvement of the state in the economy, and the
increasing tendency to malfunction of Western industrial
econoaies. Legalized politics can be seen as a defence
mechanism developed to preserve the status quo of social
power from the threats posed to it by these phenomena.79

i7‘Igwa;ds a Ngw ganada, (Toronto: Canadian Bar Foundation, 1978),
p. 15.

77Donald Smiley commenting on Halter Berna, “The Legislative

Protection of Rights, ” in William R. Mcllercher, ed. Ihe U.§. 3111 g;
‘ t C ‘ C rt r f i hts d r edo (Toronto, 1983),i

pp. 104-105. Twenty years ago Prof. Smiley similarly claimed that,
As Canadians have become less diligent about reading the
scriptures around the family hearth or saying the rosary
before retiring, the secular nationalists attempt to move in
with a new set of devotional exercises. There is little
evidence that such verbalizations of general principles hare
any profound effect on hunan conduct.
See D.V. Smiley, u r , note 57, p. 290.

73Legalizatiog gt Eolitics, supra, note 18, p. 73.

“1hid., p. 71. In response to a student’s question during hisi
“Politics and Law” course given at Osgoode Hall School during the
summer of 1989 (POLS 3320J.06), Prof. Handel admitted that he was



Prof . Mandel refers to the Charter as the “epitome of unguided judicial
power.”” Siilarly, David Fraser has opined that the docuaent. allows
legalisn to “spread like a p1ague.”‘1 “Despite all the heavy
exaltation,” claims Prof. Mandel, “the Charter has merely handed over
the custody of our politics to the legal profession.’l’3
F.R. Scott and the others who fought for the constitutional

protection of rights and freedoms would be shocked at the result of
Michael flande1’s analysis. Although nuaerous progressive intellectuals
and even the first two leaders of the New Denocratic Party, Tansy
Douglas and David Lewis, were early advocates of an entrenched bill of
rights, segments of the Canadian left seen to be distancing themselves
from the Charter. Yet, in contrast to Prof. Handel’s prescription of
fatalistic resignation, another socialist, Charles Campbell, has argued
that “the judicialization of politics requires the pr~”iticization of
the judicial process.”“ In addition, Joel Bakan has maintained that
while courts sight be unlikely to render progressive decisions under
the Charter, they do not “act illegitiaately when, and if, they do.”“
Socialist scholars appear to float far from the stratosphere of
certainty earlier described by Charles Evans Hughes.

To different degrees, both Patrick llonahan and Michael Mandel have
turned their backs on substantive jurisprudence in favour of a romance
with politics. Once we have stepped in from the sun of judicial

indeed advancing a conspiracy thesis.

“Legalization gt Eglitics, u r , note 18, p. 86.

“David Fraser, “And Now for Something Completely Different,”

fligd, Yearb. Ago. Qggt, VII (1987), pp. 66-79.

33_I_._gg§1_ization 01 Politics, guy;-_a_, note 18, p. 308.

“C. Caapbell, “The Canadian Left and the Charter of Rights,”

ggcialist gtudies II (1984), p. 41. He suggests that “leftists in the
legal arena should firmly seize the opportunity and face the necessity

ofpoliticising the legal process,” at p. 42.
“Joel Bakan, s r , note 41, p. 183.


adjudication and entered the forum of contemporary political
resolution, we would be well advised to remove the dark sunglasses that
Professors Handel and Monahan have urged we don. To remove the
blinkers of democratic formalism, is to ensure that idealism is
tempered with common sense.
Solutions which resort to “more politics not less”‘5 seem all well
and good until we stop and considerthe fate of those members that will

, be effectively excluded from the political debate- “The diversity of

Canada,” said Prof. J .R. Mallory, “has made it a polity with many
minorities which are everywhere vulnerable to the passing whims of
majorities.”‘“ We need only recall the deplorable treatment of ,
Japanese Canadians, among others, to realize that exclusion is not only
possible in this country, it is a part of our so-called “communitarian”
history.” As Gordon Kadota, of the National Association of Japanese
Canadians told the Special Joint Committee on the Constitution,

Our history in Canada is a legacy of racism made legitimate
by our political institutions.“

If Courts vacillate or adopt the postponing posture advocated by
Alexander Bickel and Anne Bayefsky,“ certain Canadians will be left to
wait until popular sentiment comes to their aid. No one, however, can
guarantee that popular recognition of injustice will be forthcoming,
speedy or steady.

David Beatty properly reminds us that the “judiciary provides a
forum which is less vulnerable to the wealth and influence that

”Eg1itig§ ad the Qnstitutiop, sung, note 6, p. 119.

“LR. Mallory, “The Charter of Rights and Freedoms and Canadian

Democracy,” flmlin Lecture given at the University of Saskatchewan, in
Saskatoon, Saskatchewan, 8 March 1984. I

’’’See Tholas Beraer.
Qmmga (Toronto: Clarke, Irwin a Co. Ltd., 1981), esp. Chapter 4, pp.

93-126. ,
“Appearing as a witness on November 26, 1980, quoted by Berger,

My 9’ 93* p
39 e e us r , _-;g_:,p_x_’a, note 33 and A. Bayefsky,

_s_;1_p_r_a, note 35.


powerful majorities can exert in the political arena.”°° Rather than
the elitist or anti-democratic institution depicted by sale, the
Supreme Court can engage the polity in a consideration of society’s
tolerance, or lack thereof. “It is only by refining the judicial
processes,” says Prof. Beatty, “that we can couit. ourselves
collectively, as well as individually, to right the wrongs we sonetines
inflict in the name of Iajority rule.”s1 4
It is indeed necessary to refine sone of the historic tendencies
of the Canadian judicial process. Adopting the advice of Lord Denning
M.R., Judge Fred Kaufman of the Quebec Court of Appeals has stated that
“bold spirits” rather than “tinorous souls” are required to interpret
the Charte .93 On this point, William Conklin, Michael Hartney, and

C David Beatty would be in agreement. We have not had an absence of

tinorous souls on the bench. The interpretive views of Prof. Conklin,
Mr. Hartney, and Prof. Beatty lust prevail over those of Anne Bayefsky,
Patrick Monahan, and Michael Mandel. Chapter Two will begin to C
consider how the Supree Court would benefit by adopting thisadvice.

“David Beatty, supra, note 14.

“Fred Kaufman, “The Canadian Charter: A Tine for Bold Spirits not
Tincrous Souls,” g_q§i;1 L.J. XXXI (1936), pp. 456-465.

Chapter Two

Historic Reluctance

The legislature within its jurisdiction can ‘do everything
that is not naturally impossible, and itis restrained by no
rule human or divine … The prohibition ‘thou shalt not
steal’ has no force upon the sovereign body.

, Mr. Justice Riddelll
To properly appreciate the Chg:-ter’s impact on the Supreme Court, A
one must consider the experience of the Court and the Judicial

Cosmittee of the Privy Council under the Constitution Act, 1867.3
Unlike the Australian Constitution of 1900 which created the High Court

of Australia, the Constitutigg Act, 18§_7 did not grant ultimate

appellate jurisdiction to a Canadian court.3 The Britis Nort merica
A_c__t, as it was then known, did not even establish a federal court of
appeal.‘ It was not until 1875 that Parliament passed the Supreme and
Excheguer Courts Act giving birth to the Supreme Court of Canada.‘ For
the next three quarters of a century, however, the highest court of
appeal for Canadians remained overseas. The Judicial Committee of the
Privy Council had, among other jurisdiction, the power to hear per saltum
appeals coping directly from the highest courts of the provinces. The

lfilorence Mining Co. v. Cobalt Lake Mining Co. [1909] 18 O.L.R.
275) A pa (cIAo)o . A –

‘Formerly the British fiorthggerica Ag; .

3The High Court of Australia was the final court of appeal on inter
g questions (jurisdiction on the Comuonwealth and the States) but could
grant leave. Appeal did lie onother questions until this right was A

abolished. ‘See Peter Hogg, _C_gggtitutiogg,’L Law 9; Canada (Toronto:

Carswell, 1985), n. 23, p.168.

‘The B.N.A. Act did indirectly authorize the creation of such an
institution in the future. p Section 101 of the Act allows the Parliament of
Canada to ”provide for the constitution, maintenance, and organization of
a general court of appeal for Canada.”

‘The Exchequer Court of Canada, also created by the act, has since
been replaced by the Federal Court of Canada. The statute currently
governing the Supreme Court is ‘I’ e u reme Court t R. .C. 197 c.S-





Supreme Court’s decisions could be circumvented and overturned;
“supreme” they were not. a
As British subjects and later as Canadians remaining under the

British tradition of parliamentary supremacy, the rights and freedoms
of the people of Canada were historically defined by Parliament and the
legislatures. The role of the courts was strictly passive.‘ Judicial
restraint was facilitated by the original Constitution Act which made
no specific reference to equality, human rights or fundamental

, liberties. Section 92(13), of that Act, granted the provincial

legislatures the authority to make laws concerning “property and civil,
rights,” but did not define civil liberties for groups or individuals.
The only exception to this absence of definition was the provision
protecting French and English in the Parliament of Canada.and the
legislature of Quebec (s. 133), and the articles protecting
denominational schools (s. 93). Under the “exhaustion principle”, all
governmental power was believed to be divided between the~federal and
provincial levels.’ In this division of authority between state and’
state and the resulting push and pull over definition in the judicial

system, individuals and minorities were often lost in the fray.

‘See nio ier C . ° ‘ bii v. e [1899] A.C.
580. In the Judicial Committee’s view,

…the discretion committed to the parliaaents, whether of the
Dosinion or the provinces, is unfettered. It is the proper
function of a court of law to determine what are the limits of
the jurisdiction.committed to them; but, when that point has
been settled, courts of law have no right whatever to inquire
whether their jurisdiction has been exercised wisely or not.

At p. 585.

“See Peter Russell. ei
(Ottawa: Carleton University Press, 982), pp. 4~5.

. .


U 24

0 {L C ..E!__* .7 ‘ii! ‘ – -.n —
In 1867, Walter Bagehot acknowledged that “the benefits of a good

monarch are almost invaluable; but the evils of a bad monarch are
almost irreparable.”5 The sane can be said of Parliaaent. Under
parliaaentary supreaacy, one elected assembly may respect the rights of
certain groups or individuals while another lay siaply choose to ignore
the: for reasons of its choice. “The legislature can confer new rights C

i on the citizen,” warns J.R. Mallory, “but it is equally free to take

away or alter rights that have existed for centuries.”9

Constitutional protection of civil liberties is no guarantee
against the infringement of rights. Yet, without such protection those
who are discriminated against have no recourse to seek legal reaedy;
those whose voices are drowned out by the political process have little

opportunity to seek any remedy whatsoever. Since the courts were

i rarely disposed to recognize fundaaental rights and freedoms, such
A helplessness is precisely what occurred at various tines during the

first eighty years of Canadian history. For F.R. Scott, and many
progressive persons of his day, such absolute constitutional authority
was unacceptable. .

Nevertheless, during the debate over a charter of rights for
Canada, Iany traditionalists held that the inclusion of such a doculent
would be inconsistent with the rest of the constitution.1° Entrenched
civil liberties were said to reverse the preference for collective
rights over individual rights. It was often argued that Canada had a
much better record with civil liberties under the suprelacy of

, ‘Walter Bagehot, The English Constitution (London: Oxford

University Press 1968) [first published in 1867], p. 78.

9J.R. Mallory, “The Continuing Evolution of Canadian
Constitutionalism,” in Alan Cairns and Cynthia Williams, eds.,

gggstitptionalisn, Citizenship and Society in Canada (Toronto: U. of T.

P0 530 \

1°See Douglas A. Schaeiser, “The Case Against Entrenchment of a
Canadian Bill of Rights,” Qg;:_g;_g; 1 (1973), pp. 14-50; and D.V. Sliley,
“The Case Against the Charter of Huaan Rights,” C.J,P.§. 11:3, (Sept.
1969), pp. 277~291.


Parliament than many nations which had constitutionally protected
freedos. R
In the United States, the first ten aaendnents of the Anerican

Constitution were inspired by the British Bill of Rights. These
amendments were written into the U.S. Constitution prior to its
adoption in 1787, and enumerated certain integral liberties such as the
freedom of speech, the press, and peaceful asseably.11 C The articles
which cane to be known as the American Bill of Rights, however, were
not always interpreted generously. In fact, many of those who objected
to the codification of liberties for Canada would often point to the
United States to illustrate the failure of the Bill of Rights in

comparison to “effective” parliamentary democracy.” Even after the

addition of the Canadian Charter of Rights and Freedogs to the

T Constitution, one commentator would lament that former Prime Minister,

Pierre Trudeau, had presided over the “Americanization of Canada.””
During the 1950’s, John Farthing wrote a book that was typical’. of
that generation of thinkers who rouanticised about Canada’s past. In
Freedom Nears a Crown, Mr. Farthing urged Canadians to abandon the
notion of constitutional rights and return to the roots of their “great
political tradition.”14 Yet, a closer look at Canadian history will

“See Amendments I through X in the Qgnstitutign 9’ if the United ,
States 0: America, 1787. Many of these right were later extended to the
state level of governnent with the adoption of Amendment XIV.

. 13!-lad these commentators compared the United States record with
civil liberties to that of the British Government regarding Northern
Ireland, they may have had much more difficulty reaching a conclusion
preferring parliamentary over constitutional protection of rights.

13Robert Fulford, “Charter of Wrongs,” fiaturday Night (Decenber
1986), p. 7. .

“John Farthing, ee om We rs C ow (Toronto: 1957), p. 175.
Under the Charter, Patrick Honahan still wants us to return to the
“coanunitarian traditions” of Canada’s past. See £9J,_i_t_.__1,g_§_gp_d___t_l3g

C ‘ e S _ _.-

Constituion: The Chrter dea s ad th C

(Toon: Crwell, 87, . iv.

reveal that, for some, the tradition was not as glorious or as ‘great’

as John Farthing reneabered it.”

London. The Judicial Couittee‘ was created by a statute of the British
Parliament in 1833. The body included the Lord Chancellor, the Lord
Chief Justice, and various judges.“ The Act which conceived the
Judicial Conittee gave it jurisdiction over Admiralty appeals fro: the
colonies and all other appeals which were previously reviewed by the
king or the king in council.” with respect to Canada, however, this
broad mandate did not tenpt the Judicial Committee to move beyond
questions of federalism toconsider civil liberties. I.ater, Halter
Tarnopolsky relarked that the law lords “decided early in our
constitutional history that discrimination on racial grounds was not a
basis for invalidating provincial legislation.”13 2

From 1867 until the mid 1890’s the Judicial Couittee resolved
nost federal-provincial disputes in favour of the legislative power of
the Doninion. During this period, s._91 of the Constitution was
interpreted broadly and the federal government’s prerogative to
legislate for the “peace, order, and good government” was given wide

“With very few exceptions, the “great political tradition” did not
include the recognition of civil liberties for various minorities in Canada.
In fact, Canadian concern for human rights as reflected in literature, and
federal and provincial legislation is largely a post-World War II
phenomenon. On this point, see R. St. J. Macdonald and John P.

Hunphrey, The Practice of ggeegog (Toronto: Buttervorths, 1979), p. xv.
“See B.I.. Strayer, Judicial fieview of Legislation in gangs

(Toronto: U. of T. Press, 1968), p. 11.

“The Judicial Committee act of 1844 specifically referred to appeals
from any British Colony or Possession. According to B.L. Strayer, this
‘formalized’ the royal prerogative of justice. 1b_id., p. 23.

NW. Tarnopolsky, “The Control of Racial Discrimination,” in 1115

edom, supra, note 15, p 292. o



definition.” After 1896, the Privy Council was less generous in its
interpretation of the Dominion’: residual power. «Under Lord Watson,
and later Lord Haldane, agreater emphasis was place on a. 92 of the
Constitution. Before the end of the century, the court reversed its
previous position and decided that the federal government could not
legislate under the general power of a. 91 if the effect of much
legislation was to “trench” upon provincial powers.“ A debate was
eventually begun on whether to and appeals to London.“
During the l930’s, while Canada was experiencing the worst social

crisis of its history,“ the Privy Council invalidated much of 12.8.
Bennett’s New Deal legislation. Their Lordships ruled that the federal
and provincial governments possessed jurisdiction in “water-tight
compartments” that could not be tanpered with, even in times of
crisis.“ Commenting on the spirit of the Judicial Committee’s later
judgments, Bora Laskin observed that the body’s de-centralizing
decisions frequently involved “manipulations which can only with
difficulty. be represented as ordinary judicial techniques.”34 Yet, no

“Section 91 outlines the powers of the Federal Parliament while. a.
92 enumerates the exclusive powers of the provincial legislatures.

‘° [1896] A.c. 348 (P.c.)-
“See J. Snell and F. Vaughan, e u re


flistory of the institution (Toronto: The University of Toronto Press,
19§_§Q_, pp. 189-91, for an overview. For contemporary Jousting see John
8. Ewart,”Judicial Appeals to the‘ Privy Council: I. The Case for ’
Discontinuing Appeals,” @ XXXVI! (1930), pp. 456-473, and
George Sedgewick, “Judicial Appeals to the Privy Council: II. The Case for

Appeals,” Queen’: Quarterly XXXVI I (1930), pp. 475-489.

“See D. V. Smiley, ed. , (Toronto:
Hcclelland and Stewart Ltd., 1963).
“See o ….-…-v. v .*-1″ ~ – gm… 9‘

(Employment and Social Insurance Act Reference) [1937] A.C. 355;

._ -W- ener p – mb’ v ,- 1- ; ._ – . :
(Natural Products Marketing Act Reference) [1937] A.C. 377; Attgmex
– – -. anada v Att e o . In – (Labour Conventions
Case) [1937] A.C. 327.

’ “B. Laskin “Peace, Order and Good Government’ Re-examined,”
Qan. B. gev. XIV (1947) 1054, at p. 1086 quoted in Edward Mclihinney,
Judicial Review, 4th ed. (Toronto: 0. of T. Press, 1969), p. 69.



such nanipulationswere used to recognize civil liberties in the

In 1899, the Judicial Committee did invalidate a British Columbia,
statute which forbade Chinese immigrants from working in underground
mines.” However, the legislation was struck down for the sole reason
that it was ultra vires or outside the authority of” the legislature by
trenching “upon the exclusive authority of the Parliament of Canada.”“
The Court implied that, if enacted by the competent level of
government, it would not invalidate racially-motivated legislation.

It proved this implication in 1903 by rendering Cunningham v.
Toley llggln .17 A Section eight of the British Colulbia Election Act,
,J_._§_9_Z had provided that people of Chinese, Japanese, or Indian origin,
whether “naturalized” or not, were not entitled to vote.‘-‘3 According
to the British Colulbia Suprele Court, the act was an invasion of the
federal power over “naturalization and aliens.” However, the Judicial
Committee decided that the law was not ultra vires and declared that Mr
Toney Hanna, a naturalized British subject of Japanese origin, had been
properly prohibited from voting in the election of 1900. The Judicial
Comnittee ordered his nane struck from the register of voters in a
Vancouver electoral district. The Lord Chancellor claimed that in
determining disputes between as. 91 and 92 of the Constitution, “the
policy or iapolicy of such an enactment as that which excludes a

particular race fro: the franchise is not a topic which their Lordships
are entitled to consider.”39 Therefore, while the Judicial Committee C

was later to employ “manipulative techniques” in its decentralizing ,

decisions, their Lordships explicitly decided that such judicial ,
devices were not to be used to prevent injustice for individuals.

’5 . supra. note 6.

” [1903] M3. 151 (P.c.).
2a o, pa

29 o, at 155″‘156o

~ II!

,_.‘,,‘_t_._,_‘ E,‘ ,,__ ,__,,_..;.u- L_x……a4:.-.;_;s.-R.—”

.3… m-

.a.~..-…» ….-.‘._…-1:. u-v.x‘h.x.‘«.-u -o~£z…..~..-.. ..’.z~xs.£-~..=¢ iw’.~.k—-A-V …..~..’suSn….za ,-….-a. .. .2: …- .. .. ..~-.. .. z …-.. ~—.¢ :3-.a-%’rn -1.1.1 ’ ‘ ss…3;.u..~”sAs..<. nu-vtedpssurfi-.».&o.x.uo.nLk=s.t»..a:2.-a-axis ” ‘ l” “



D 5:, ,

,‘heM?,, HAVE ?55 ,iJl.ETfL9,-5l1?w ,. m, > 4
Some might be tempted to think that everyone would have been
better off had the people decided who was to be allowed onto the British
Columbia electoral rolls. Would the “comaunitarian tradition” not be
preferable to a Judicial Committee decision? Consider this editorial

which appeared in the Victoria Qglgnist shortly after the Privy
Council’s decision in the Iogey Homma case. The paper comnented

We are relieved from the possibility of having polling
booths swanped by a horde of Orientals who are totally
unfitted either by custon or education to exercise the
ballot, and whose voting would completely demoralize politics
… They have not the renotest idea of what a denocratic and
representative government is, and are quite incapable of
taking part in it.3°

There is no evidence which indicates that this view was not shared by
the majority of British Colunbians. The community does not seen to
have been intent on preserving fundamental freedoas. However, had the
Supreme Court of British Colunbia’s ruling been allowed to stand,

racial discrimination could have been prevented and the civil liberty

of many individuals could have been respected.

Yet, the ac. Court’s ruling was not left to stand.” It was
overridden not only by the Judicial Connittee, but by the Federal
Parliament itself. Ottawa passed a law which prevented everyone who
had been disenfranchised, for racial reasons by the provinces, from
voting in the federal e1ection.31 There were also laws on the
provincial statute~books which were racially discriminatory with
respect to the right to gain a livelihood. Laws were passed to keep
“undesirable” innigrants fro: being employed in the hope of forcing
such people to return to their country of origin. In 1923, one such

3°Quoted in Thomas Berger, f ~i’ . . , i1: are a
isse t in Canada (Toronto: Clarke, Irwin & Co. Ltd., 1981), p. 97.

31Ibid., p. 97. Only war veterans were excepted from this
restriction which was enacted in 1920.


act prohibiting the elploylent of Asians was upheld by the Judicial

Co|nittee.33 Lord Chancellor Viscount Came wrote:

Now, whatever may be said as to the stipulation against eaploying
Japanese labour, there is nothing (apart from the §giti§h_flg;t
ggerica Act) to show that a stipulation against the enploynent of
ichinese labour is invalid.33

The passive nature of the Privy Council’s judgments during this

period must certainly have kept the xenophobes content by contributing

to ethnocentricity. Unfortunately, decisions of this caliber did not

end in the 1920’s.


It is always easier to find tolerant societies during times of‘
peace and prosperity. Constitutional rights may be said to exist to be
tested in times of crisis. One of the lost tragic illustrations of the
absence of popular consideration of individual rights occurred during
World War II. In 1947, the Judicial Connittee went to the extreme in
denonstrating its passivity with respect to civil liberties under the
Constitution Act, 1867; the Privy Council expanded a Supreme Court
decision validating orders~in—council for the Deportation of

After the attack on Pearl Harbour of 7 December 1941. ilnigrants
who had retained Japanese citizenship were forced to register with the
Registrar of Enemy Aliens as Gernans and Italians in Canada had already
been required to do. However, on December 16, an order-in~council
counanded all persons of Japanese descent to register, whether British
Subjects or not. Although Canada had been at war with Italy and
Germany since September of 1939, Canadians of German and Italian origin

33§rooks-Bidlake and Hhittgll Ltd. v. A.G. of B. C.[1923] A.C.

450, (P.C.).

331g;g., at p. 458.
3*C ~ er tive Connittee on Ja anese Canadians v. A.-G. of Cgg;
[1947] A.C. 87 (P.C.).

\*.’»x- -‘L -“‘-“”~t’-V””i”““F””f”‘-‘K“’§’ “‘ ‘ “«”‘*u”“I*$‘I’P’cI’6“..:N’ »u- ‘ rv

Mcclelland and Stewart, 1976).


‘were not forced to undergo similar huIiliation.35 In some instances,

registration was demanded for citizens who had resided in Canada for

over two generations!35
Mackenzie King’s d’portation order included Canadian nationals of

Japanese origin, nany of when had never seen Japan, and the wives and

children under sixteen of such persons. Although Japan had

sunconditionally surrendered in August, 1945, the order-in-council was

issued four months later and defended as a legitimate exercise of
emergency power. The Supreme Court of Canada, by a split decision,
remarkably determined that the orders~in~council were valid, except for

the provisions authorizing the deportation of wives and children under

16.37 The Judicial Committee incredibly upheld the orders in their
Speaking for the Judicial Committee, Lord Wright explained that

Parliament has the right to define an emergency, but:

…it is not pertinent to the judiciary to consider the wisdom or
the propriety of the particular policy which is embodied in the
emergency legis1ation.33

Wright L. also explained that the act “…nust apply to all persons who
are at the time subject to the laws of Canada.” On the subject of
citizen’s liberties, the Judicial Connittee stated that “an order
relating to the deportation would not be unauthorized by reason that it

related to Canadian nationals or British subjects.”39 For the Judicial

35Fra ile Freedoms, su r , note 30, p. 107. A clue as to why this
distinction may have been made, night he found in the diary of the Prise
Minister who commanded the incarceration of thousands of Japanese
Canadians. Shortly after the horror of Nagasaki, Mackenzie King
observed in his personal journal that it was rather “fortunate that the
use of the [atomic] bomb should have been upon the Japanese rather than

upon the white races of Europe.”

35On the treatment of the Japanese, see Ken Adachi, Ih§_§nggx
that Never Was: A History of the Japanese Canadigns (Toronto:

37[1946] S.C.R. 248.
P 33Supra, note 34, at p. 102.
39Ibid., at p. 105.


Couaittee the definition of civil liberties was outside of its scope
and was to be left strictly to the legislative branches. _

Yet, the democratic process was no more inclined to protecting the
Japanese. There appears to have been little conmunitarian impulse

toward tolerance. An editorial in The ygnggpver Sun proclaimed,

What British Colombians want to know is whether the Japs can
be sent out of the country and kept out.‘°

In fact, some laws actually forbade resettlement in B.C. For those
Japanese Canadians who were allowed to return, the political process
ensured thatmany were kept away from various types of employment.
“You will look in vain in B.C.,” lamented one professor in 1941, “for
Japanese lawyers, pharuacists, accountants, teachers, policemen or

civil servants.”41

3 COURT 0 All A
Hith respect to civil liberties, the history of the Supreme Court

of Canada under the go’ nstitutign Act, 1867 is little better than that
of the Judicial Committee of the Privy Council. In a 1914 case bearing

the sisleadingly melodious title of Quong Wing v. I he ging, the Supreme
Court upheld a Saskatchewan act which prohibited white women fro: ‘
residing or taking up enployment in any establishment owned by a

Chinese person.” When the Chinese owner of a restaurant was charged
with employing two white women as waitresses, the Court refused his
appeal by deciding that it could not be concerned with the ,”justice of the
Act in question, but solely as to the power of the provincial

legislature to pass it.”43
Justice Lyman Duff, as he then was, addressed the issue from a

purely economic point of view. Duff’s J . stated that it would require

further evidence ,

“Cited in m . aunts. note 30. p. 114.

‘1J.b.l…-la Po “986
“[1914] 49 S.C.R. 440. The offence carried with it a steep, for
1914, $100 fine.

‘=31p_;g., p. 445. Elphasis added.



. convince me that the right and opportunity to employ 1

white women is, in any business sense, a necessary condition
for the effective carrying on by Orientals of restaurants and
laundries and like establishments in the Western provinces of

Canada.“ b
In the eyes of the Chief Justice Charles Fitzpatrick, the legislation

was valid because it purported “Ierely to regulate places of business
and resorts owned and managed by Chinese, independent of nationality,
in the interest of the Iorals of women and girls in Saskatchewan.” ,
Invoking a strange principle of norality, Fitzpatrick C.J. added that:
“This legislation nay affect the civil rights of Chinanen, but it is
primarily directed to the protection of children and girls.”45
consenting on this decision, Walter Tarnopolsky has contended that
the underlying presumption of the people’s elected representatives and e
the judiciary must have been that, due to the surplus of Chinese sale
labourers as a result of legislative restrictions on their employment,
a Chinese restaurant or laundry owner ”…obviously did not need to
hire white females! If he did hire then, he must have other purposes
in Iind!”“ Nevertheless, with respect to the Qgong Wing decision, the
Supreme Court’s historians, Frederick Vaughan and James Snell
remarkably suggest that in a “racist Canadian environment it would have
been unrealistic to have expected the Canadian Suprele Court to do
other than confirm the legislation.”47 Yet, if Lylan Duff had
continued to cede to the reactionary environnent, the Al_l_)e_:_t_g,_!_’:;_e_§§
Q_s_§_e_}3 would never have been rendered, the sane say be said of Chief

Justice Earl War-ren’s Brown v. yard gf Eduggtign“ decision in the
United States or Ivan Rand’s judgement in figngagelli v, flgpless_i_s5°.

“mid-9 P0 465
‘51!_>_i_d., p. 444.

4311.8 Tarnopolsky, I
B09 Ltdog Pa 150

47?. Vaughan and J.iSnell, r
the Institution (Toronto: U. of ‘1’. Press, 1985), p. 103.
. i V . V~’~_ S§C.Ro 1009

_. [1954] 347 11.8. 483.

‘ .


*~_‘~. _ v …-
– so«?uu¢tJ



More could have been expected from Supreme Court Justices. Less, not

more, was forthcoming. Q
In 1928, the Supreme Court of Canada went as far as to tell five

women that they could not be appointed to the Senate because the
constitutional aeaning of the word “persons” did not extend to

,females.51 Not one of the judges ventured to infer that women could be

considered “qualified persons” under the Constitution.

0 %

Often Canadians rightfully criticize the American legal system for
its acceptance of the discrimination against Blacks and minorities for
numerous years.53 Yet, Canada’s legal history is not unblemished in”
this regard. Lower courts were often reluctant, and the Supreme Court
later unwilling, to recognize that racial equality was a higher
principle than freedon of commerce.

In the 1921 Lge3’s Iheatre v. fiexnolds case,53 a majority of the
Quebec Court of Appeals upheld a Montreal theatre’s right to

discriminate against Blacks. The majority ruled that:

While it may be unlawful to exclude persons of colour from
the equal enjoyment of all rights and privileges in all
places of public amusement, the management has the right to

i assign particular seats to different races and classes of ten
and women as it sees fit.54 a

51 e Me nin the Word ” erso “i . 4 the B N. . ctv
[1928] S.C.R. 276. This decision was fortunately overturned by the
J.C.P.C. in dwar s v t e – e er, C a [l930].A.C. 124.

53The infamous decision of U.S. Chief Justice, Roger B. Taney, is
often singled out. Taney C.J. ruled that Blacks were not to be regarded

as United States citizens nor granted Constitutional privileges. See also ‘

the establishment of the equally ignominious separate-but~equal doctrine

in E1gggx_g;_£g;gg§gn (1896) 163 U.S. 637.

5‘1§id., at p. 465. Chief Justice Lamothe declared:

…chaque propriétaire est maitre chez lui; 3 son gré, établir
toutes régles non contrairer aux bonnes moeurs et 3 l’ordre
public. Ainsi, un gérant de théfitre pourrait ne recevoir ques

les personnes revétues d’un habit de soirée. La régle pourrait
paraitre arbitraire, mais elle ne serrait ni illégale ni prohibée.




The Loew’s Iheatre decision was a painful step backward. The
courts had taken a sterner stand against racial prejudice twenty years
earlier in a judgement regarding discrimination on racial grounds. As
a result of the 1899 Johnson v. §parr9w decision, damages, including
compensation for injury to feeling, were granted to a Black Montrealer
who had not been permitted, due to his skin colour, to occupy seats in
the orchestra section of a theatre with the woman he had accompanied.55

In granting danages and legal costs, Mr. Justice Archibald ruled that

p the theatre’s action was “undoubtedly a survival of prejudices created

by the system of negro slavery.” In a judgement clearly delivered

ahead of its time Archibald J. went on to explain that:

Our Constitution is and always has been essentially.
democratic, and it does not admit of distinctions of races or
classes. All men are equal before the law and each has equal
rights as a member of the comnunity.55

It is regrettable that other judges did not adopt a similar view of the
Constitution. If they had, they would have concurred with the notion
that tacit bigotry is not only unconstitutional but “entirely
incompatible with our free democratic institutions.”57 Yet, the 1899
Johnson ruling was followed by judgments upholding violations of civil
liberties on racial grounds.
During the first half of this century, many minorities did not
have access to the political system. The “great political tradition”
was of little use to then against discrimination. Yet, the courts were
unwilling, or unable, to come to their aid under the Qgnstitutign Act,
In a 1924 Ontario case, a Black man was refused service in a

restaurant. The trial judge claimed that while he “could not but be

,touched by the pathetic eloquence of (the man’s) appeal for recognition

as a human being, of common origin with ourselves,” he could not grant
the man’s clail since there was no explicit law requiring restaurants‘

At pp. 460~461.
nson v. r w et
561g;g., at pp. 107-103.


. [1899] Q.R.C.S. 104.



to receive.5‘ Just prior to World War II the Supreme Court of Canada
rendered a sinilar decision in Christie v. the Igrk gogpggatiog.
affirming that restaurant owners were not required to serve Blacks and
could engage in racial discrinination under the principle of “freedom
of conlerce.”5° p

The details of the case are worth recalling. In 1939, Fred
Christie. a British subject of Jaaaican origin, a private
chauffeur in Montreal. Mr» Christie was a season box subscriber to the

Canadians hose gases at the old Montreal Forun and had on occasion
One evening Fred Christie
The waiter

bought beer from a tavern in the building.
requested three steins of beer for hilself and two friends.

refused to serve the Verdun resident because he was Black and the

waiter had been instructed not to serve “coloured people.”‘° Upon
being refused service Mr. Christie called the manager who confirned

that the only reason for denial was that he was a “coloured person.”

.Mr. Christie then telephoned the police and had the manager repeat his

previous refusal so that the authorities could.witness the denial of

A aajority of the Supreae Court of Canada upheld the act of
discrimination and refused to reinstate the danages and legal costs
that Mr. Christie had been awarded by the trial court. The Court’s
opinion, written by Rinfret J. and endorsed by Duff C.J. and Crocket
and Kerwin JJ., reaffirmed “complete freedom of connerce” in Quebec
According to the Court “any Ierchant is free to deal as he say
chose with any individual aeaber of the pub1ic.”°1 The only
restriction to such freedon was the existence of a specific law to the
contrary. Of course, “the existence of a.specific law to the contrary”
was unlikely in the illiberal Quebec of the 1940’s. Exhibiting
absolutely no inclination to read any higher principles into the

sfizggnkiin v. gvans [1924] 55 O.L.R. 349.

5′[194ol s.c.a. 139.

°°1p1g., at p. 146.
81;p;g., at p. 142.



*9 Constitution, nor denonstrating any syapathy for Fred Christie, the
3 A court delivered a sad consent.
Mr. Justice Binfret even attenpted to justify the denial of

service to Mr. Christie on the grounds that it was nade “quietly and
without causing any scene or collation whatever.” He then renarkably
concluded that “if any notice was attracted to the appellant on the
occasion in question, it arose out of the fact that the appellant
persistedin demanding beer after he had been so refused and went to the
length of calling the police, which was entirely unwarranted by the
circumstances.”°3 For Rinfret .1. it was apparently unwarranted by the

circumstances to seek justice. y g
Mr. Justice Davis was the only member of the Supreme Court willing

to recognize Hr. Christie’s right against discrilinution. In his
dissenting opinion Davis J. ruled that the conduct of the tavern was
contrary to good norals and the public order.53 The majority obviously
could have, but refused, to do the same. Yet, this was not to be last

time the Canadian courts would fail to rule against racial inequality.
The Supreme Court’s decision in Christie was used as the basis for the
dismissal of a similar action in British Columbia. Six months after
the Christie judgenent, the B.C. Court of Appeal applied the ruling of
the Supreme Court in finding that the operator of a beer parlour had

the right to refuse service to Blacks.54

‘21bid., at p. 141. Enphasis added.

‘31bid., at p. 147.

‘R0 ers v. C are e ote Co [1940] 3 D.L.R. 583. In dissent
0’Hallaran J.A. wrote, at p. 588, that “all British subjects have the sale
rights and privileges under the cannon law – it make no difference
whether white or coloured; or of what class, race or religion.” In
addition the Judge cited, gothfjeld v. North British 3. Q0. [1920] 8.0. 805,
where a railway coapany sought to exclude a Ian it described as “a
German Jew and a Ioneywlender” from its Edinburgh hotel during World
War I. O’Hallaran quoted Lord Anderson approvingly, where the later
wrote of the Edinburgh exclusion: .

It is obvious that the defenders are not entitled to exclude

the pursuer fro: their hotel because he is a Jew; and it would
have lade no difference, in Iy opinion. had it been proved
ill that he is a Jew of Geraan origin. An individual is not
responsible, and ought not to be made responsible, for his



None of this was inevitable free a legal point of view.
Coanenting on the preference of freedoa of conmerce over racial
equality in Christie, F.R. Scott noted that the majority “exercised a

’ discretion that could as well have gone the other way …”‘5

Apparently, for the majority of the Supreme Court, the role of
defending the principle of ”laissez faire” was of greater ilportance

than that of ensuring social justice.


Where were the people’s elected representatives throughout all of

ithis? The more democratic branches of governaent did not appear to

have been much more tolerant. For instance, in 1941 Prof. Mallory


The pages of Hansard are a depressing reaffirlation of the
Ieagerness of our political thought. Where is this babel of
narrow and confused ideas leading our political society?
Every country has in the political psychology of its people
an Achilles heel of prejudice with which the advocates of

dishonest causes can arouse popular feeling.55 ,
The federal government could have exerted its political pressure to

encourage reform or used its direct power of disallowance to invalidate

discriminatory provincial legislation. However, in such an atmosphere

it is not surprising that it chose to do nothing.‘7

“ancestry. V
(fiothfield [1920] S.C. 805, at p. 820.) The owners of certain beer
parlours in Canada obviously thought otherwise.

‘5F.R. Scott, Qivjl Liberties gnd Canadian Fegeralign (Toronto:

University of Toronto Press, 1959), p. 36.
‘5J.R. Mallory, “The ‘Compact’ Theory of Confederation,” Ihg

nal_h9.v.e.i.e_B.e.v.i_e.w. XXI (1941). p- 351-

‘7Although the Governor-General has not been asked to disallow a
piece of legislation since 1943, at the tine it was an effective advantage
that Ottawa held over the provinces. .See Christopher Gilbert, Australian
ggd Cgnadian Federglisa 1§67 ~ 1984 (Carlton, Victoria: Melbourne
University Press, 1986); Eugene Forsey, freedom and Qrder (Toronto:
Mcclelland & Stewart, 1974), pp. 177-191; C.V. La Forest, Disallowange

erv ti n rovin i l e is ti n (Ottawa: Queen’s Printer, 1965).




e c3


While Canada’s treatment of ninorities may have been better than
the United States, a properly empowered judiciary say have curbed some
of the injustice of our past. Many of the incidents described above
would surely have been prevented if the Qhagtgg, which Michael Handel
now rejects, had existed at the tile. Yet, Iany of these incidents
might have been repeated if the Courts had deferred to the legislative
branches as Prof. Monahan now urges.’3 J .

Today, Prof. Handel points to the §grggatsu“ decision in the
United States, to claim that it is ‘clear’ that “no Charter would have
saved Japanese Canadians from the parallel abuses of the Canadian
governaent.”7° Yet, such an assumption is far from ‘clear’. The a
American government did not issue a deportation order for the Japanese
and it is doubtful whether such an aeasure would have passed muster
under the U.S. Bill of Rights. Furthermore, in Canada the War Measures
Act has recently been revised to conform to the gharter, as have other
iaportant pieces of legislation. To assune that such a situation as
the Japanese internnent could be replicated today, is to stretch the
imagination to acrobatic proportions.

As for Patrick Mbnahan’s suggestion that “we need more politics

not less,””1 consider the gar-tin v, Law figciety 91 3,0. case.” A

‘3See the discussion of the views of Patrick Honahan and Michael
Handel in the previous and final chapters of this study.

‘9fioregatsu v. u,§. [1944] 323 U.S. 214.

“Michael Mandel, ‘ s -,1
tics n C a (Toronto: Hall and Thompson, 1989), p. 50. It is worth

noting, though Mandel does not, that in figggggtgg there was an

iaportant dissent. Describing the majority decision in figgeaatsu as the
“legalization of racism,” Mr. Justice Murphy of the U. S. Supreae Court
issued a strong repudiation of the ruling of his brethren stating that it
was “difficult to believe that reason, logic or experience could be
narshalled in support of [the] assumption … [that] all persons of Japanese
ancestry say have a dangerous tendency to commit sabotage and

espionage.” 1h1d., at pp. 235, 242. It should also be noted that, without
an entrenched bill of rights, the najority of the Supreme Court of
Canada could not find grounds to invalidate the much sore serious

government neasure of deportation.

71Patrick Monahan, ”

J. (Toronto: Carswell. 1987). p.


graduate of the University of British Coluabia Law School was denied
adaission to the Bar of B.C. because he was a member of the Labour
Progressive Party and had campaigned for elected office as an LPP
candidate. Although, the LPP was a legal party, the Benchers refused
to allow Mr. Martin to be called to the bar because he was a comnunist.
Canada was not experiencing the kind of witch-hunts which would soon
dominate the United States during the tragic McCarthy era. Yet,
neither the politicians nor the citizens comprising the “great
coununitarian tradition” showed any great inclination to step in and
allow conmunists, or those with unpopular political views, the
opportunity to practice law in British Columbia. Contrary to Prof.
Monahan’s general prescription, the problem here appears to have been
too much politics not to little. V
Arguing against the entrenchment of rights in the Canadian

Constitution, D.A. Schneiser warned Canadians “not to relinquish part
of their sovereignty to the potential despotism of the judiciary.”73
According to Prof. Schmeiser, judges could “thwart the public will.”74

On the other hand, he held that,

If the people appreciate that they are the primary guardians
of freedom, they will be conscious of, and watchful for
violations of freedon.75

Canadians have always, and hopefully will always, have the opportunity

to be conscious of the preservation of liberty. During the era of

parliamentary sovereignty, the people of Canada, through their
democratic representatives, were the final arbiters of freedom as they
lived under a judiciary which claimed to be powerless in the protection
of civil liberties. From the turn of the century to the 1920’s,
certain Canadian towns greeted visitors with the warning: “No
Catholics, Blacks or Irish.”

For many years, Canada’s immigration policy continued to rank the
ethnicity of individuals as “desirable” or “undesirable”, without

73[1950] 3 D.L.R. 173 (B.C.C.A4).

73Douglas Schmeiser, gupgg, note 10, p. 26.
7‘1bi_., p. 30.

751g1g., p. 31.



popular objection. Moreover, Asians were disenfranchised and prevented

from taking up employment; the Japanese were deported; Blacks were
refused service; and Connunists were kept out of the Bar – while the
majority looked on in silence.
Lest the wrong impression be given, it should be noted that there

were some outstanding judicial decisions where “bold spirits” g
recognized fundamental rights where ”ti|orous souls” could find none.
For exanple, as early as 1916, Mr. Justice Stuart observed in a
sedition case that,

There have been more prosecutions for seditious words in
Alberta in the past two years than in all the history of
England for over 100 years, and England has had numerous and
critical wars in that tine.75

Despite, such a history of judicial pusillaninity, Chief Justice Duff
and Davis J. were not deterred from finding a constitutional “right of
free public discussion of public affairs” in the Alberta Egess Cgse.77

C Our forbearers can be thankful that the Province of Alberta’s 1937p

Accurate News and Information Bill was net with valiance in the
Court.73 The proponents of ainority political views in Quebec were
sinilarly fortunate that the Suprene Court cracked Premier Duplessis’
“padlock law” in 1959.79 Such displays of valour on the part of the

judiciary, however, were rare under the British North Ageriga Ag .

7‘Cited by F.R. Scott, supra, note 65, p. 36.

77§upra, note 48. Duff C.J. ruled that free speech is “the breath of
life of parliamentary institutions.”

73The sword used to preserve liberty was the principle of an
“implied bill of rights” within the constitution.

7’§w;tzIan v. glbling [1957] 8.0.8. 285. The “Padlock Act” had
made it illegal to use a house “to propagate connunisn or bolshevis: by
any means whatever.” The Court had earlier struck down a bylaw that
prevented the distribution of pamphlets without the prior permission of
the Chief of Police, in fiauggr v. City gg Quebec [1953] 2 8.0.3. 299.

The Justices also used cannon law to recognize ad protect
individual civil liberties in a number of other cases during the 1950’s.

See Chaput v, Rguaig [1955] S.C.R. 834, Lggb v, ggggit [1959] S.C.R. 321,
and goncarglli V. pgplesgis, supra. note 50.

~s r -.


Chapter Three

Constitutional Half—Way House

To define and protect the rights of individuals is.a prime
purpose of the constitution in a democratic state.

F.R. Scott.1
The same year that the Judicial Committee upheld the Supreme
Court’s decision to deport Japanese Canadians, the Saskatchewan
Legislature enacted Canada’s first Bill of Rights. As a regular act of
the Legislature it could have been repealed at any time by that body.
Nevertheless, the Saskatchewan legislation was a monumental first step
in increasing the respect for civil liberties in Canada. g
The international community soon followed suit. The General

Assembly of the United Nations passed the Universal Declaration of
Human Rights in 1948. Although the Universal Declaration does not

contain effective measures of enforcement it affirms political, legal,

egalitarian and econoaic liberties. Many nations signed they

=Dgclaration and bound themselves to its declaratory provisions; Canada

was one of them. ,
To conform to the spirit of the Declaration, Parlianent of Canada

subsequently established a joint committee to explore the possibilities
for a national bill of rights. A Special Senate Committee on Human
Rights and Fundamental Freedoms followed shortly thereafter and many
recommendations were heard to insert a bill of rights into the British

i Rising in the House of Coamons in May 1947, John Diefenbaker urged
the adoption of such a bill by stating that it would protect
individuals and minorities, and “assure that each of us would have a
legal right to be heard in the courts of this country.”3 Later, in

1″Dominion Jurisdiction over Human Rights and Fundamental
Freedons.” Qanadisn_§sr_Re1ies. XXVII (1949). 9- 497-
3John G. Diefenbaker, Qpe Canada: The xears gf achievement 1957-

] lggg (Toronto: Macmillan of Canada, 1976), p. 32.



March 1952, the future prile sinister provided further reasons for
supporting a bill of rights:

A Bill of Rights would do something lore; it would aake
Parliament freedom-conscious.‘ It would make Parliament
realize .that rights were ito be preserved. It would make
Parliament more cautious in passing laws that would have the
effect of interfering with freedoa. It would act as a
landmark by leans of which Canadians, through Parliament,
would have redeclared those things which have made Canada
great. It would preserve those spiritual wells in
legislative for: without which freedoa cannot survive. It
would give to Canadians the realization that wherever a
Canadian lay live, whatever his race, his religion or his
colour, the Parliaaents of Canada would be jealous of his
rights and would not infringe upon those rights which are
dear to us all …3 i ‘

Upon coming to power, a few years later, the Diefenbaker Government
considered submitting a draft Bill of Rights to the Supreme Court for
an advisory opinion.4« This option was never carried through as it was
soon decided that the proper step would be to table the Bill in
Parlianent.5 .

In 1960, after debating the issue for many months, Parliament
passed fin Act for the gecognition and Protection of Human flights and
Eundamental Freedoms.“ However, the Supreae Court’s interpretation of
civil liberties under the Canadian Bill of Rights was to be nearly as
narrow and technical as it had been before the legislation. The courts

Vshowed great reluctance to give the statute teetb.7

The shortcomings of the Diefenbaker 3111 Q: flights were apparent
from the outset. In 1959, Bora Laskin, then Professor of Law at the

‘Ibid., p. 256.

5It is, nevertheless, interesting to speculate how the Suprele
Court would have reacted to such an unusual request, especially in
light of their later ineffective interpretation of the Bill.

38.8.0. 1970, Apps III. Ihereinafter, ,QanadyyL_jflJJ__g£;Bigh£§,
i Ri hts or ‘the Bill’]. a

7The legalistic and restrictive interpretation of the gggggjgpn
gill of Rights is well documented elsewhere. See, for instance, J.
Snell and F. Vaughan, – & . – -f-Can8d 3 .–ifnt °
Institution (Toronto: U. of T. Press, 1985), pp. 214~232.


University of Toronto, wrote an article in which he classified “civil
liberty” Iatters.3’ Professor Laskin, who later become Chief Justice of
the Supreme Court of Canada, observed that the proposed draft of the
Bill of Rights was “replete with omissions and obscurities.”9 While
noting the Bill’s limitations, he expressed disappointlent that it
would apply only to the federal level of governIent.1° Hr.
Diefenbaker, in fact, did not even seek provincial agreenent for the

dentrenchnent of the Bill into the British North America Act;11 at the

tine, such approval seemed unattainable.12
Prof. Laskin was not the only authority criticising the Bill’s

defects. 3.3. Scott had urged that a bill of rights be included in the
B.N.A. Act13 and was quick to observe that the principal omission of
Diefenbaker’s Bill was the absence of any new legal reuedies for
individuals.1‘ As it turned out, it took the Supreme Court a decade to

idecide that it would render legislation inconsistent with the Bill of

Rights inoperative.15 Yet, even after the Drxbones decision the Court

3Bora Laskin, “An Inquiry into the Diefenbaker Bill of Rights,”

XXXVII Canadian Bar Review, (1959), pp. 77-134. For a recent
interpretation see Neil Finkelstein, “Laskin’s Four Classes of
Liberty,” LXVI Canadian Bar Review, (June 1987), pp. 227-266.

91bid., p. 125.
1°Ibid., p. 78. Laskin used the word ‘unfortunate’ to describe
this condition.

,11Donald Creighton, Csnada’s First Centur (Toronto, 1970), p.

13Writing in his autobiography during the l970’s, Diefenbaker

renarked: . ,
My experience with the provincial governnents indicates that

they were too jealous of their jurisdiction over property and
civil rights to support any aaendlent applicable to
thenselves. I have little hope that their attitude will be

altered in the years ahead.
Que Canada, supra, note 2.

13F.R. Scott, The Canadian Constitution and flunag flights.

(Toronto: Canadian Broadcasting Corporation, 1959), p. 50.

1*F.R. Scott, “The Bill of Rights and Quebec Law,” in Can. B.
Rev., XXXVI! (1959), p. 135.

15R. v, Qrzbgnes [1970] S.C.R. 282.

continued its reluctance to review legislation which case into apparent
conflict with the human rights outlined in the legislation.

The first section of the Bill stated that, “it is hereby
recognized and declared that in Canada there have existed and shall

continue to exist without discrimination … the following huaan rights

, and fundamental freedoms …” The judiciary proceeded to interpret the

first article in a literal manner.i This produced the “frozen rights”
doctrine which prevented the courts from recognizing rights that had
not existed when the Bill was adopted in 1960.1‘

The 1950’s had left hope that the Suprene Court might find tacit
civil rights within the B.N.A. Act to make it consistent with the new
§ill_of Right .17 This expectation was quickly dispelled with the Qilg
Chemical and Atomic Workers ruling in which the aajority of the Court
disagreed with Justice Abbott’s concept of an “implied bill of
rights.”15 The Supreme Court determined that it was within British
Columbia’s jurisdiction to prohibit union contributions to political
parties under the province’s authority to regulate labour relations.
Similarly, Egiter v. Attorney General of Alberta affirmed the right of
the Government of Alberta to pass the Coanunal Property Act with the
intention of limiting the expansion of Hutterites and other minority

sects.19 ,The Supreme Court, in a unanimous decision, held that Alberta

had exclusive jurisdiction over property, regardless of the civil,

liberties affected.

15See Robertson and Rosetanni v. The Queen [1963] S.C.R. 651.
Ritchie J. declares, at p. 654:

It is to be noted at the outset that the Canadian Bill of
Rights is not concerned with ‘human rights and fundamental
freedoms’ in any abstract sense, but rather with such ‘rights
and freedoms’ as they existed in Canada immediately before

the statute was enacted.

i 17For the “implied bill of rights” theory see Reference re Alberta
Statutes [1938] S.C.R. 100, 133-134 per Duff C.J.; §aunur v. City of
Quebec [1953] 2 S.C.R. 299, 354 per Kellock J. and 363 per Locke J.;
Switzaan v. Elbling [1957] S.C.R. 285, 328 and Oil, Cheaical and Atomic
Workers v. Imperial Oil [1963] S.C.R. 584, 600 both per Abbott J.

18[19s3] s.c.a. 534.
19[19s91 s.c.R. 333.



One of the most disappointing cases under the §i11_gL_fi1ghtg was
the ;5gg1;_5ng_g§gagd judgeaent.3° The Indian Act allowed Indian men
to aarry non~Indian women without relinquishing their Indian status,
yet, Indian wonen who married non-indians were denied registrations as
members of Indian hands. The discriminatory provision of the Act was
held invalid by lower courts and the Federal Court of Appeal. However,
Justice Ritchie led a majority of the Supreae Court to proclaim that
equality before the law did not pertain to equal treataent, but equal

enforcement and administration of the law.

In response to the Laval; and gggarg decision, Ennett Hall
relarked that the gill of Rights, “went tron a high point of great
expectancy down a short steep slope to near oblivion.”31 Writing to a
colleague on the bench, a retired Justice Hall stated that the Iajority
decision on the leaning of equality before the law anounted to “plain

damn nonsense.”33 In reference to the author of the ruling, Ellett

Hall said,

I cannot help but think of ny erstwhile colleague hitchie as
coming within that qualification of those Ialsals who destroy

and devour their young.33 ‘
Indeed, the opinions of Mr. Justice Ritchie and his supporteres
rendered nany provisions of the Bill largely nugatory, destroying the

hopes of a generation. According to Neil Finkelstein, the Supreme

Court’s later judgments under the Bill of Rights ‘eviscerated’ the

Qryboges decision and ’emasculated’ the Bill’s equality provisions.3‘
William Conklin’s explanation for the demise of the gan;gign_§ill

9£_fi;ght§ is linked to the rationalistic ilage of a constitution which

v. A’.-G. Can. [1974] s.c.e. 1349.

31Dennis Gruending, mett Ha : s b is e t ‘ a (Toronto:
Macmillan of Canada, 1985), p. 164.

321§§Q., p. 167.

33In the letter written to former Judge Thomas Berger. Quoted
1 bids ‘ A
3‘N. Finkelstein, supra, note 8, p. 231, n. 14.




Justice Ritchie and his brethren presupposed in their judgIents.35
Prof. Conklin contends that an apolitical and passive institutional
self—inage permeated the judiciary’: application of’posited statutory
rules; the problem was with the judges conception of the constitution.
“Their ilage of a constitution could not absorb or incorporate the
bill,” writes Prof. Conklin, “much like an old body with a.newly~
transplanted heart, their isage rejected the Bill as a foreign,

unassiuilable object.”3‘

. II ‘
The Bill of Rights was not to protect Canadians against the
Trudeau GbvernIent’s invocation of the War Measures Act to deal with an

“apprehended insurrection.” The details of the 1970 October Crisis are
well docuaented elsewhere, yet it is worth noting that the event saw
the suspension of habeas corpus, the right to bail, and access to
counsel, all with widespread public approval. A cosplacent majority

‘did not pursue these indiscretions by delanding a Royal Colaission of

Inquiry to investigate the questionable circusstances surrounding the
Government’s draconian measures. For J.R. Mallory, the incident
“illustrated the fragility of generally accepted civil rights and

indeed of the whole constitutional order.”27

I Despite the various international crises that have faced the
United States this century, nothing even coming close to the Canadian
War Measures.Act has been inflicted on the doaestic American ‘
population. Perhaps, this best be kept in lind before getting carried
away with.Michael Handel’s adaonition that the Quarter encourages too

i Iany lawyers to interfere with politics. To use Willian Conklin’s

phraseology, Prof. Handel’s problem appears to be that his negative
‘iaage’ of judges and the Constitution leads his to reject the Charter

35Willias Conklin, 1aagaa_g£_a_£gn§ti§9ti9n (Toronto: University
of Toronto Press, 1989), Chapter V, pp. 84-98.
3519; ., p. 98.

37J}R..Hallory, The gggactare gf Caaaaiaa ggvagaaent revised

edition (Toronto: Gage Publishing, 1984), p. 356.

— a\_\..,-


as a foreign conspiratorial object. Were Prof. Handel to develop a
Constitutional image as sophisticated as that of F.R. Scott,“ his
relentless criticism of the Charter might be redirected.

Thereaay be interpretations of the §aa_t;_t_e_r_ well worth improving
and some of these will be considered in the next chapter. However,
unchecked majorities have been known to sentence philosophers to death
and to scream for crucifixions. Despite, the protestations of a few
concerned voices, the Governmentis actions in October 1970 would easily
have been confirmed if put to a referendum. “It is true that civil
liberties have been better protected in Britain than in the United
States,” state Corry and Hodgetts. “It is also true,” they add, “that
without bills of rights in the federal and state constitutions, civil
liberties in the United States would have suffered still greater

infringement. “39
With respect to the protection of civil liberties in Canada, the

1960’s and 70’s illustrated that the Canadian Bill of Rights was not
enough. In the jjagaa judgement the absence of judicial remedies in the
Bill became painfully evident when the majority made it clear that it
would not interpret a remedy for the abrogation of Mr. Hogan’s “right
to.counsel.”3” As the Court came to interpret the Bill, its
limitations became more obvious, leading Chief Justice Laskin to
perceive the document as “a half-way house between a purely canon law
regime and a constitutional one.”31 soon Canadians would recognize
that, in the protection of civil liberties, ahalf-way house does not
make a home. After seemingly endless rounds of constitutional
negotiations, theagharter was finally adopted.

“See F.R. Scott, __s_ap_ga, note 1.
“LA. Corry and J.E. Hodgetts, ic v me t an ‘t‘cs

. (Toronto: University of Toronto Press, 1959).

Wflggaa v. Ihe Qaeen [1975] 2 s.c.a. 574

. ‘Q .5

Chapter Four

Increased Authority

It is something astonishing what authority is accorded to
the intervention of a court of justice by the general opinion
of mankind. « .

) 4 V Alexis de Tocqueville‘
The Qa;t5_1_”s political impact on the Supreme Court can best be
considered by noting the structural changes brought about by the

patriation of Canada’s Constitution. The Court’s new responsibilities

have been explicitly mandated by as. 24 and 52(1) of the Qgnatitujjgn
act, 198 . Although the supremacy clause, ‘s. 52(1), is not part of the
thirty-four articles which are collectively known as the _gaaag_iaa

Charter of Rights and Fgeedggs, it nevertheless gives the gharja; and

the rest of the Canadian Constitution its overriding capacity to the

. extent that any law inconsistent with the document is “of no force or

effect. “3 A
As a result of the categorical wording of s. 52(1), since 1982,

the greatest change in the institutional history of Canadian politics

has occurred. Parliamentary supremacy in Canada has been replaced by A
constitutional supremacy.-‘5 Furthermore, the Supreme Court nowhas the
power to define how rights will be enforced. Section 24 of the Qharta;
grants the Court the power to exclude evidence which, if allowed,

“would bring the administration of justice into disrepute.” In

addition, s. 24(1) enables the court to devise “creative remedies” to

guarantee rights and freedoms.

1 J.P. Mayer, ed., George Lawrence, trans.
(Garden City, NY: Doubleday, 1969), p. 139. Originally published in
1835. ’ ,

‘The legislation found inconsistent with the section is rendered

‘The inclusion of the non obstante clause (a. 33) and limitation
clause (a. 1) in the have prevented the creation

of judicial supremacy.




-sac: _,;~u

.1..1 gm “. ‘°; 9.4 1 9-
Eg§Q§_s__m_Qa;m_c_l_a (Toronto: Wall and Thompson,

vfidflo 01-: _.-,g‘ ’-;,l,:iH,


0. T‘ 1 .9 .-. u-.._..s_l’..‘


With the new provisions of explicit and expanded invalidation
power, remedial authority, and the potential to exclude evidence, the
court has been granted an unprecedented ability to guard against the
infringement of rights. By establishing a set of new relationship
between the individual and the state, the ghafiar, has allowed the court
to enter a new domain of constitutional interpretation. The judiciary
is therefore now required to define and, if necessary, to limit state 1
power over individuals. This new reality has increased the Supreme
Court’s political character-

In addition to its post-1949 ‘watchdog role’ in Canadian
federalism, the Court has been handed the responsibility of
interpreting the fundamental rights and freedoms of individuals and
groups in Canadian society. Therefore, the constitutional emphasis of s
the court has shifted from merely determining the scope of federal and
provincial legislative and governmental powers, to interpreting the
rights of individuals in their dealings with those two levels of

A government —and related agencies. The passive option to decide cases

solely on the principles of federalism is no longer open to the Court.
While Michael Mandel may choose to lament the “legalization” of
politics,‘ it has more importantly been agreed that the Chartar will
allow individuals and interest groups to present national issues ,
“unencumbered by the snares of federalism.“ Where constitutional
questions once revolved solely around disputes of state versus state,
now private individuals and groups of citizens may constitutionally

challenge questionable government action.

a ‘Michael Mandel, 1 – 4 – – – –
‘ ‘ 1989).
5Rsiner Knopf!’ and F‘.L. Morton, “Nation-Building and the Canadian

Charter of Rights and Freedoms,” in Alan Cairns and Cynthia Williams,
‘ 2;,’ + 2 -at 2.. : !”.;.v’— (T030330: U-

of T. Press, 1935), p. 151. 1




IC L5,. 4.. ..§._.__: I. I . -4! . e .-._;«1 -‘
Over the past three decades there has been a considerable shift in
attitudes toward the state’s role in the protection of liberties. For
example, when the §fl1 was introduced in 1960, legal aid was
extremely scarce. Today, the vast majority of criminal cases are
pleaded by lawyers whose services are paid for by the state.“ A
dramatic re-orientation has taken place in the public’s concept of
individual liberties and rights.
In his memorable article on the Bill of Rights, Bora Laskin
outlined four classes of liberty: political, legal, egalitarian,
economic.’ The first three of these classes have been greatly affected
by the Charter. The provisions of the Constitution Act, L982 which
grant remedies and invalidate legislation, were notably absent from the
Bill 9; Rights. Unlike’ its statutory predecessor, the Chgrgr provides
grounds for the judicial enforcement of rights and freedoms, and does
so at both the provincial and federal levels.“ This has significantly
influenced the depth and significance of Supreme Court judgments.
According Peter Hogg, judicial review under the _C_h_a_;_tg;; isa
“formidable task, involving a much higher component of policy than any
other line of judicial work.“ 4
The Court has met the chapter with a different spirit than it did
in the Qaggdiag Bill of flights. Mr. Justice Le Dain has written of a
“new constitutional mandate for judicial review,”1° which, in the words
of Madam Justice Bertha Wilson, means that “those convenient escape
hatches (to defer to the legislature) are not open under the Qhartgz,

‘Peter Russell. “The First Three Years in Charterland,” Q,£_._A.
XXVIII:3 (1985), p. 373.

7B. Laskin, “An Inquiry into the Diefenbaker Bill of Rights,”

XXXVII Cgn. 3. Rev. (1959), pp. 77-134.

‘Part II, a. 3 of the explains that:

“The provisions of Part 1 shall be construed as extending only to
matters coming within the legislative authority of the Parliament of Canada.”

’P.W. Hogg, Qgggtitutional Law of Qgnajdg, 2nd ed. (Toronto:
Carswell 1985.) p. 653.

“ELLE [1985] 1 S.C.R. 613.

.— nv—v- —-r-


which uses broad and vigorous language and whose paramountcy is clear
and unqualified by virtue of s. 52. “11 Chief Justice Brian Dickson has
affirmed that “a constitutional document is fundamentally different

from the statutory g_m_g_d_iap £111 91 flights, which was interpreted as

simply recognizing and declaring existing rights. “13
Elsewhere, the Chief Justice has declared that “the task of
expounding a constitution is crucially different from that of

construing a statute. “13


– 1..

It is clear thatthe Qhagtg was built on two decades of a

I- g ’

experience under the Bill of fights. However, since many of the

contentious issues that have arisen and will arise under the a ter
have already been litigated by the United States Supreme Court, America

civil liberties jurisprudence has been cautiously considered in

Canadian cases.“

There are many differences between the Canadian and American
constitutional experiences with respect to the courts. In the United S
States, the sixth article of the American Constitution establishes that
document as the “supreme law of the land.”15 ‘However, with the third

article of the U.S. Constitution, there is a particular “case or

1,1Bez-tha Wilson, “Decision Making in the Supreme Court,”

2.___’1;.__t.i, xxxvu (1986), p. 227.

“§,,__1_,___Q_ak_e_s_ “[1986] 1 s.c.s. 103, at p. 124.
“Hunter v. goutmm mg, [1984] 2 S.C.R. 145, per Dickson C.J.C.

at p. 155. H

. ~“Mr. Justice Estey observed in Lgw §gigtL

; (1984), 9 D.L.R. (4th) 161 (S.C.C.), at p. 168: .
The courts in the United States have had almost two hundred year’s
experience at the task and it is of more than passing interest to
those concerned with these new developments in Canada. to stud y th
experience of the United States. a
A B i – i~ -’ i(1787).



controversy” requirement in order to obtain standing.“ In contrast,

the Canadian judiciary has been much more willing to hear cases under ~
the liberal provisions of s. 52(1) of the .17

This provision allows individuals or groups to initiate legal

proceedings if they can demonstrate direct consequence in the validity

of the legislation or a genuine interest as citizens where there is no
other reasonable and effective manner in which the issue may be brought
before the Court.

To a large extent Canada has had the opportunity to learn from
many of the inequities which have arisen south of the border. In the
United States the federal Bill of Rights has been incorporated by the
states on a selective basis.“ For instance, although most Bill of
Rights criminal process guarantees have been made applicable to both
levels of government, the grand jury indictment provision of the Fifth
Amendment and the “excessive bail” provision of the Eighth Amendment do
not apply to the states.“ Canada has avoided the inconsistency 1
brought about by the selective incorporation battles of the U.S. Bill
of Rights, by applying the Charter to the federal and provincial
governments. Due to the integrated nature of the Canadian court system
and Canada’s single criminal code with uniform national application,
many of the American irregularities with respect to criminal justice
have been avoided.” Despite these structural differences, the Supreme

“Under the U. S. Constitution the right to standing is granted on
a far more limited basis as claimants must prove “injury in fact”. See

Laurence Tribe, (Cambridge MA: Harvard
University Press, 1985), p. 99.

“See. for instance. (19811 2

S.C.R. 575.
“Following the precedent established by Mr. Justice Benjamin

Cardozo in Eallgg v. Cggnegtigut 302 US 319.

“Gerald Gunther, , 11.1…. (New York: The
Foundation Press, 1985), p. 432. See also Edmond Orban, “Droits de la
personne de et processus de centralization: r6le de la Cour supreme

des Etats-Unis,” g.,z,g.s.. xx:4 (décembre, 1987), p. 719.

“The revelations of the Marshall Inquiry in Nova Scotia and the
recent Inquiry into Aboriginal Justice conducted in the Pas, Manitoba,


‘I’ . r%& -I

Court of Canada has learned from the experience of its American

While the (LS. Constitution remains a document of the eighteenth

century political tradition, the Canadian Constitution has become a
product of more modern social and legal thought. “Although framed in
the rhetoric of liberal individualism,” writes Patrick Monahan, “the
Qhg-_t,g_r_ simultaneously emphasizes communitarian and republican
values.”31 Robert Sharpe, of the University of Toronto Faculty of Law,
has noted that language is one of the major differences between the
Canadian and American constitutions. In comparison to the negative
restrictions in the American Constitution, the Canadian Constitution

C makes affirmative promises.” Prof. Sharpe has emphasised that instead

of stating “congress shall make no 1aw,”” Canada’s document‘ affirms
that “everyone has the following fundamental freedoms.”34 The
fundamental justice, equality, and affirmative remedy sections of the
Canadian Constitution serve to underscore the point. Stating rights
and freedoms in a positive manner inevitably leads to great power being
invested in the Supreme Court to fulfill the Constitution’s promises.


2. S —’;….\L” TL‘ . 1., 1
The Supreme Court’s new-found authority has been made possible by

the various provisions added to the Canadian Constitution in 1982. The

Court’s greatest influence has been, and will be, exerted in

interpreting the extensive ‘set of human rights and fundamental freedoms

outlined by the Qhaztgx. These provisions can be essentially divided

into six broad categories: fundamental freedoms, democratic rights,

mobility rights, legal rights, equality rights, and minority language

education rights.

“Patrick Monahan. (Toronto:

Carswell, 1987), p. 251.
n”Dialogue,” Q. 3. Q. 1,. 3., XXI:1 (1987), pp. 186-187.

“The First Amendment of the 915″‘ L

“The §_m;;gg_r, s. 2.

.0‘_,! ,1


— The delineated fundamental freedoms include freedom of religion,
thought, conscience, belief, expression, peaceful assembly and
association. Democratic rights are specified in as. 3-5. Among
democratic guarantees are: the right to vote and hold office; the
provision that Parliament and each provincial legislature hold at least
one sitting every twelve months: and the assurance that neither the a
House of Commons nor any provincial legislature may continue longer
than five years, except in “time of real or apprehended war, invasion
or insurrection” in which case such a continuation must not be opposed
by the vote of one-third of the members of the House or legislature in
question.” Canada’s mobility rights are expressed in s. 6 which
ensures that every citizen has “the right to enter, remain in and leave
Canada,” and guarantees that citizens and permanent residents have the
freedom to “move to and take up residence in any province,” and “pursue
the gaining of a livelihood in any province.”

The new relationship between individuals and the state, created by
the Chart r, is subject to judicial ‘interpretation of the legal rights
set out in as. 7-14. Rights which apply to arrests, detentions, and
proceedings in criminal matters are defined in these articles. In
addition, s. 7 includes the affirmation that “everyone has the right to
life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of
fundamental justice.” This legal right is of particular importance,
since, in one of its most activist decisions to date, the Supreme Court
ruled that s. 7 has both procedural and substantive significance,
ensuring that the actual content of government legislation is also

consistent with these values.“

“The Qhgggr, s. 4(2).
” [1985] 2

S.C.R. 486, at 492, [hereinafter ]. While

considering the broader range of values expressed under the Charter
Lamer J. explained that the “Content of legislation has always been
considered in constitutional adjudication. Content is now to be
equally considered as regards new constitutional issues.” See also

, inks, note 182, per Wilson J., at p. 492.


Equality “rights are expressed in s. 15 of the Qhantgr. This
section establishes a general prohibition against discrimination.

Although the fl_fl;_gf__Bjgh§§ protects the right of the individual ‘before’
the law and guarantees “the protection of the law”, a. 15 of the Qhggtgg;
goes further to recognize that everyone has the right to “equal protection
before and under the law,” in addition to ”equal benefit of the law.” As
a result, several forms of discriminationare proscribed, including “race,
national, or ethnic origin, colour, religion, sex, age, or mental or physical
disability.” It is understood that the list of examples is notsleant

to be exhaustive, but the court has not yet had to establish the

relative importance attached to forms of discrimination expressed in s.
15 and those which are implicit, such as sexual preference or
discrimination based on height. ,

Many of the rights and freedoms guaranteed by the Qhgrteg are not
limited to Canadian citizens. Only democratic rights, nobility rights,
and minority language education rights are restricted to “citizens of
Canada.” other rights or freedoms belong to “everyone” or “any
person.” Since these terms are not defined it has been left to the
Court to clarify their potential application to groups or corporations.

, Minority language education rights are guaranteed under s. 23(1))
of the Charteg. “Due to a political compromise during the
constitutional drafting process, Canadian citizens “who have received
their primary instruction in Canada in English or French and reside in
a province where the language in which they received that instruction
is the language of the English or French linguistic minority,” are
granted the right to have their children “receive primary and secondary
school instruction in that language in that province.” ’


All human rights and fundamental freedoms expressed in the Qharter
are not absolute. They are subject to potential restriction. Section
1 permits governments to limit rights, provided that such limitations
are “reasonable,” “prescribed by law,” and “justified in a free and
democratic society.” Although, the first section of the C,h_arter

acknowledges the inherent tension between ‘individual’ and ‘collective’
rights, it places the burden of proof on the state to justify any such

limitation on individual freedom.27

The theory behind the general limitation clause holds that rights
and freedoms, in any society, cannot be unlimited. iDespite the absence
of a restriction clause in the U.S. Constitution, the American Supreme
Court has read limitations into the Bill of Rights.33 The Charter was
drafted with the consideration that, although it is highly desirable to
protect individuals and minorities against possible excesses at the
hands of the sajority, it is also necessary to ensure that only~
reasonable rights are confirmed. Therefore, s. 1 strikes a balance

between collective and individual rights.


As a substantive provision, the Suprese Court appeared at first
reluctant to consider a. 1. In the Quebec Protestant_§ghoo1 Boards
case,39 the Quebec government argued that its restrictions on access to
English education were reasonable under the first section of the
Charter. However, the Supreme Court refused to consider Quebec’s s.,1

claia since the provision of Bill 101 in question (a. 73), directly

27Henri Brun had argued earlier that it is incumbent on the
claiuant to show that the not reasonable within the meaning of
s. 1., see Henri Brun, “The Canadian Charter of Rights and Freedoms as
an Instrusent of Social Developaent,” in Claire Beckton and Wayne

Mackay, eds., Ihe Qgurts and the Charter, (Toronto: U. of T. Press,
1985), p. 13. Cf. Constitutional Law 9: Canada, supra, note 9, p.

33Consider, for example, the restrictions to free speech outlined
by Mr. Justice Oliver Wendell Holmes in v. .8. [1919] 249 US

i 47. For a general conparison between the American Bill of Rights and g

the Charter consult H.8. Mcfiercher, Ihe U.§. Bill g§_§igh§§“and_Lhg
Canadian Charter gf Right@_and Ereedogs, (Toronto: Ontario Econonic
39Attorne neral of ebec v ebec Asso iat’ n f rot st

2 S.C.R.


s 58
violated a. 23 of the Charter and, therefore, were not a limitation but
the outright denial of a constitutional right.3″ ‘

e ueen v i M. ru Mart the Court struck down the Sunday
closing provision of the federal L9rd’s flay Act because it conflicted
with the Charter’s guarantee of freedom of’religion.31 The decision
was significant in many ways. The act in ouestion had already been
unsuccessfully challenged under the Bill of Rights in gobertson and
R set ni v. e een.33 The judgement clearly illustrated the
superior force of Charter rights. In Big M. Drug Mart corporations
were recognized as ‘individuals’ under the Constitution for the first
time. Furthermore, the Court used the ‘purposive’ approach to
determine the philosophical and historical roots of rights and
freedoas.. Due to the obvious religious bias of the legislation, the
court rejected the application of s. 1 and defined the limitations
clause for the first time.

Under the explanation provided in the Big.M. Drug gart case, in’
order to justify a Charter infringement, a government is first required
to prove the disputed law has a valid purpose or involves an issue of
“pressing and substantial” societal concern. Once this is established,
the onus is still on the crown to demonstrate that the measures used by
the law are not unfair, arbitrary or bring about incommensurate
effects.33 _ B

In 3. v. gages, the Supreme Court went further in defining the
limitations clause of the Charter.34 The case arose after David Edwin
Oakes was charged with the unlawful possession of narcotics for the
purpose of trafficking, an offence under s. 4(2) of the Narcotic

3°;g., at 88.
31[1985] S.C.R. 295 [hereinafter Big M. Drug Mart].
33[l963] 8.0.8. 651.

33In fact, when a more secular Sunday closing act was challenged

wards oks and rt Ltd. v. The een [1987] 2 S.C.R. 713. The
Court found that while the legislation still interfered with the
guarantee of freedom of religion under s. 2(b) of the Charter, it was a

‘ reasonable and demonstrably justified limit under 2. 1.

3‘Ei~1L_QaLg§ [1986] 1 S.C.R. 103, [hereinafter Oakesl.



§Qgtgg;_Agt. The Crown sought to establish the offence by using the’
reverse onus provision (s. 8) of the Ag_. However the accused was
acquitted and the decision was upheld by a unanimous Ontario Court of
Appeal where Mr. Justice Martin concluded that the reverse onus
provision of the Narcotic Control Act was unconstitutional “because of
the lack of a rational connection between the proved fact (possession)
and the presumed fact (an intention to traffic).”35 g

The Crown eventually appealed to the Supreme Court, arguing that

the provision in the Ag; was a reasonable limitation. As a result, a.

1 of the Charter was finally clarified. Writing for the Court, Chief
Justice Brian Dickson recognized that the purpose of s. 1 is to place
limits on rights when “their exercise would be inimical to the
realization of collective goals of fundamental importance.”35 His
Lordship outlined two essential criteria which must be satisfied before
a legal limit on a right could be justified. The first criterion holds
that any limitation overriding constitutionally protected rights and
freedoms must “relate to concerns which are pressing and substantial in
a free and democratic society before it can be characterized as
sufficiently important.”37 In other words, it is first necessary to
prove that the objective for which the limitation is designed is of
sufficient importance. If this is achieved, the state must prove that
the means chosen to reach the objective are “reasonable” and
“demonstrably justified.” The determination of this second criterion
involves a “proportionality” test for which there are three components.
First, the law must be “rationally connected” to the objective of the
limitation. Second, even if rationally connected, the means chosen
must impair the limited right or freedom “as little as possible.”
Third, even if the first two standards are met, the state mustthen
demonstrate a proportionality between the “effects” of the mean, or the

35Martin J., R. v, Oakggs [1986] 145 D.L.R. (3rd) 123 at 147 (Out.
CoAo )0

3‘Qakeg, ra, note 12, at p. 136.
av;g_., at pp. 133-139.


extent to which a particular right or freedom is limited, and the

‘ objective.3‘

The “stringent standard of justification” enunciated in Ogkgs was

‘ relaxed in two cases dealing with the freedom of conscience and

religion guaranteed by section 2(a) of the Qhggte . In ggggs v, 3.,

the Albert; fighggl ggt was challenged by a fundamentalist pastor who

ran his own scaool and refused to subject his public
education.39 The pastor refused to seek permission fro: the school
board to educate his own children and was therefore charged. Mr. Jones

claimed that his religious freedom had been violated by being required

to obtain a certificate from the state validating his school.

According to the pastor, only God could authorize permission to
educate. In using the s. 1 test Wilson J. concluded, in dissent, that
“the government adduced no evidence to establish that having the
parents apply for a certificate was the least drastic means of ensuring
that their children were receiving efficient instruction.”4° According
to Wilson J., the legislature could have kept the onus on the
educational authorities by giving them the power to inspect on their
own initiative. However, writing for the majority La Forest J. seemed

“to back away from the stringent Cakes test by stating that,

No proof is required to show the importance of education in
our society or its significance to government. The
legitimate, indeed compelling, interest of the state in the
education of the young is known and understood by all
informed citizens. No is evidence necessary to establish the
difficulty of administering a general provincial educational
scheme if the onus lies on the education authority to enforce
compliance. The obwious way to administer it is by requiring
those who seek exemptions from the general scheme to make
applications for that purpose.‘1

The Qgges test was further qualified in gdwards flgggs gag Art

where Chief Justice Dickson stated that a reasonable limit is one that

331big., at p. 139. Dickson C.J. states that the standard of
proof under s. l is the “civil standard, namely, proof by a
preponderance of probability.” At. p. 137.

3°JQnes v. 3. [1986] 2 S.C.R. 284.
4°1p;g., at p. 141.
41;_p_i_g., pp. 299-400.



between the Edwards Books and Art decision and the fl1g_flg judgement


“it was reasonable for the legislature to impose.”43 The contrast

illustrates the difficulty in predicting how the Court will decide
under s. 1. In the ggwgrgsӤgoks and Art case, the Chief Justice
decided that commercial regulation need not be “tuned with great
precision in order to withstand judicial scrutiny. Simplicity and
administrative convenience are legitimate concern for the drafters of
such 1egislation.”‘3 Dickson C.J.C. warned that, “the courts are not

called upon to substitute judicial opinions for legislative ones as to

the place at which to draw a precise line.”44 Yet, the possibility for
such judicial deference is not acknowledged by Joel Baken who has
commented that in light of its subjective nature:

One would be hard-pressed to come up with standards any more
open-textured and indeterminate than those prescribed in
Section 1. Whether_a governmental action is “reasonable” and
“demonstrably justified inwa free and democratic society” is
a matter of opinion and political choice, not a technical
legal question.‘5 i

In an early article on the Charter, Prof. Russell had already
speculated that s. 1 would provide a clear policy-making challenge to
the courts by inviting the Supreme Court fto participate more
systematically in making decisions.”4° The gages decision shows that
the Court has taken up the invitation, though not without the caution
displayed in Jones and Edwards figoks and Ar . The recent Irwin Tgy ‘
decision has reaffirmed the proper applicrtion of s 1 by stating that
it is not necessary for governments to “choose the least ambitious

means to protect vulnerable groups” if it can be proven that there is a

‘zfigpgg, note 33, at pp. 781-782.
‘3Ibid., at p. 772.

45Joel Bakan, “Constitutional Arguments: Interpretation and
Legitimacy in Canadian Constitutional Thought,” 0;H.§.J. XXVII:1
(1989), p. 162.

4‘Peter Russell, “The Effect of a Charter of Rights on the
Policy-Making Role of the Canadian Courts,” C.P.A., XXV:1 (1982).


‘ “sound evidentiary basis” for the legislative purpose of an


In the recent ggpggign Newspapers case, using the s. 1 test, the
Court upheld a provision in the Criminal Code that prohibits the

publication of the names of complainants in sexual assault cases .‘°
The Court recognized that the rationale for the legislation is that “a
victim who fears publicity is assured, when deciding whether to report
a crime or not, that the judge must prohibit upon request the
publication of the complainants’s identity or any information that
could disclose it.”49 Since the provision ensures a dcase by case”

approach, and since it was recognized that nothing prevents the public
and the media from being present and reporting the facts of the case
and the conduct of the trial, the s. 1 test passed scrutiny.

Another important test for s. 1 occurred in a recent labour
arbitration case. The Supreme Court ruled that an arbitrator appointed
pursuant to the Canada Labour Code could order an employer to send
positive letters of recommendation as the exclusive response to
enquiries about a forner emp1oyee.5° Upon finding a radio—time
salesnan’s dismissal to be unjust, the adjudicator ordered the
salesman’s former esployer (Q-107 radio station in Toronto) to pay
compensation, provide a positive letter of reference stating the
accurate details of the employee’s successful sales record and the
result of the arbitratoris decision, and finally to make no other
comment with respect to an inquiry on the employee’s record. S1aight
Communications Inc., which owns the aforementioned radio station,
claimed that this was an unfair encroachment on its freedom of A
expression. The Court unanimously found that the order was contrary to.
l s. 2(b) of the Charter. However, the majority in algight
Cousugigatigns determined that the arbitrator’s order met the s. 1

7 rwin o v. .—-G. of uebec (1939), 53 D.I..R. (4th) 577

(s.c.c.). F
48 (1933), 52 D.L.R. (4th) 690 (s.c.c.).
gr‘ 4°1p;g., p. 697. A
5°8 ai ht nmunications nc. v. Davi son (May 4, 1989) not yet

reported [hereinafter §laight CogIunigatiogs].



gages test as a valid “legislatively-sanctioned attempt to reaedy the
unequal balance of power that normally exists between an employer and
employee.”51 Nonetheless, in dissent, Mr. Justice Jean Beets said that
the compulsory letter of recolmendation is “totalitarian in nature and
can never be justified under s. 1 of the Charter.”53 The split ‘
judgement illustrates the conceptual difficulties that some of the
judges have with the notion of positive liberty.

Although it was at first cautious in determining the scope of s. 1
analysis, the Suprene Court has since recognized its duty to determine
the relative ilportance of rights, freedoms, and their limitations. In
Cakes Chief Justice Dickson explained that:

Some limits on rights and freedoms protected by the Charter will
be more serious than others in terns of the nature of the right or
freedom violated, the extent of the violation, and the degree to
which the measures which impose the limit trench upon the integral
principals of a free and deaocratic society.53

The Court will have to deal with these issues as it comes to define the

equality provisions in s. 15 of the Charter.

51J.G. Ince, ed., “Labour Arbitration Orders and Freedom of

Expression,” Q. Q; R. gewsl. II:2 (June 1989), p. 3.

53§Qp§a, note 12, at pp. 139-140.



.. g “5 L7. “L ‘

During the drafting of the Chgrter the heading of s. 15 was
changed from “Anti—Discrimination Rights” to “Equality Rights” to avoid
precluding positive equality rights.5‘ It has been urged that, under
the provision, the Court should examine not only equality of
opportunity but equality of right.55 To prepare Canadian society for
these changes as the Charter became law, there was a three year delay
before s. 15 went into effect. This lapse was designed to allow the
legislatures to modify existing laws to conform with the new provision.
It was expected that s. 15 would eventually come into conflict with s.
1. «By April 17, 1985, the date on which the equality section was
activated, little had been done to modify existing legislation.
Nevertheless, by the spring of 1987 there were already 150 Charter
cases in the courts based on a. 15,55 and by the spring of 1989 two of
these had reached the Supreme Court.57 h

The Andrews case involved a citizen of the United Kingdom who had
taken law degrees at Oxford. Mark David Andrews petitioned the court

after being denied the right to practice law in B.C. without first

5‘Anne Bayefsky, “Defining Equality Rights,” in Bayefsky and

Eberts, eds., Equality Rights and the Canadian Charter of Rights and

Ereedoms (Toronto: Carswell, 1985), p. 10, n. 3.

55For recent analysis consult 0. Lynn Smith, “Judicial
Interpretation of Equality Rights under the Canadian Charter of Rights
and Freedoms: Some Clear and Present Dangers,” U.B.C.L. Rev. XXIII:l
(1989), p. 95; see also Richard Moon, “Discrimination and its
Justification: Coping with Equality Rights Under the Charter,”

.Q.fl.L.J. XXVI:4 (1988), pp. 673~712. For a thorough treatment of s.

15, refer to Kenneth H. Fogarty’s full length study, Eguality Rights
and theig Limitations in the Charter (Toronto: Carswell, 1987).

5‘Pierre Thibault, “La Charte canadienne: cinq ans deja!” Lg
Dgggig, (16 avril, 1987), p. 13.

, 57Andrews v. Law Society of British Columbia (1989) 56 D.L.R.
(4th) 1 [hereinafter Andrews]; and 3. v. Turpin, not yet reported.



becoming a Canadian citiaen.5° In the first Charter case to reach the
Supreme Court, w 8 t A r C . ,5’ a similar
restriction was upheld in Ontario. However, the §_hgp_in1;g_r case
involved the mobility rights in s. 6, because a. 15 had not yet come
into force.‘° A A y
In gpdrgws, a lower court found that the requirement of Canadian
citizenship to practice law in B.C. was rational and reasonable because
of the “special commitment to the community which citizenship
involves.” The Supreme Court of British Columbia reversed this
position. Writing for the court, Judge flcLachlin noted that the
legislature’s objective in enacting the requirement was to ensure
persons adsitted to the bar “are familiar with Canadian institutions
and have a committment to Canadian society.” The court recognized the
province’s claim as ‘pressing and substantial’, nevertheless. it
determined that the means chosen ~ the requirement of citizenship – is

not reasonably and demonstrably justified.°1

The Law Society of British Columbia appealed to the Supreme Court
of Canada and ten intervenors were recognized. The Andrews decision
provided the first test between as. 15 and 1. Prof. Hogg had contended
that laws which draw distinctions or classifications between
individuals constitute violations of s. 15 and require that the
analysis shift to s. 1.52 However, in the Court of Appeal, Mctachlin
J.A. (as she then was) had expressly rejected the professor’s view. In
order to constitute a violation of s. 15, it‘ was determined that

V “discrimination” must be treated as an “unjustified differentiation” or an

“unreasonable classification.” The lower court decision held that if the
Hogg interpretation were adopted, s. 15 would ‘dwarf’ the other
provisions of the Charter and it would become the central issue of all

5’§dpra, note 14.
‘°The s. 1 question was not put.

ew v. w ie rit’ p p (1987), 27 D.L.R.
(4th) 600 (B.C.C.A.). Following this decision Hr. Andrews was admitted
as a solicitor in B.C. and shortly thereafter became a Canadian citizen.

“P-it floss. . aunts. note 9. p- 800-

-unu ..
– – .1

Qhagtgg litigation as the Fourteenth Amendment had with respect to the
U.8. Constitution.‘3 In was ruled that in determining whether an
ilpugned distinction is “fair and reasonable” its purposes or aias and
effect on persons adversely affected aust be determined. Judge
McLachlin held that since the specific grounds enumerated under s. 15
are not exhaustive, the distinction of “citizenship” could be
considered diacrimination.‘4 She thus decided in Mr. Andrews’ favour.
In the Supreme Court of Canada, Mada: Justice Bertha Wilson wrote
the majority opinion in Andrew . Wilson J. emphasised that “relative
to citizens, non citizens are a group lacking in political power and as
such vulnerable to having their interests overlooked and their rights Q
to equal concern and respect violated.”‘5 Quoting from J.H. Ely,
Wilson J. affirmed that since non-citizens do not have the right to
vote, they are along “those groups in society to whose needs and wishes
elected officials have no apparent interest in attending.”‘5 In a
classic defense of equality rights and the importance of having a
Qharter to preserve essential freedoas, Mada: Justice Wilson also
reiterated John Stuart Mill’s observations that “in the absence of its
natural defenders, the interests of the excluded is always in danger of

being overlooked …”°7 Even sore isportantly, Wilson J. established at

flexibility that will allow the Charter to adapt to the needs of the


It can be anticipated that the discrete and insular
minorities of tolorrow will include groups not recognized as
such today. It is consistent with the constitutional status
of s. 15 that it be interpreted with sufficient flexibility
to ensure the “unrelitting protection” of equal rights in
years to come.

‘3Anggggg (B.C.C.A.), ggpra, note 61, at p. 606. Emphasis added.
saflbidop at p9 6100 M ‘

‘5Anggegg,_ggp;a, note 57, at p. 32. T
¢01g;g., pg; Wilson J., from J.H. Ely, Qelggragx and pistrust

(Cambridge, MA: Harvard University Press, 1980), at p. 151.
‘71§i§., pg; Wilson J., from John Stuart Mill, Qg Liberty and

Qggsigeggtiogs of flepresegtative Qgvezngegt (Oxford: Basil Blackwell,

1946), Book III. e


um‘ «’11 AE’rqI -‘wavy, ____”___ … , ‘


In dissent, McIntyre J. also rejected the Hogg approach, because it
would draw a straight line froa finding a distinction to a.
determination of its validity under s. 1 thus denying any role for s.
15(1). The dissenting judge proceeded to refute the usefulness of the,
gage; s. 1 test as it applies to a. 15 cases, preferring instead to ask
“whether the liaitation represents a legitiaate exercise of the
legislative power for the attainaent of a desirable social objective
which would warrant overriding constitutionally protected rights.”‘5

In so doing, Mclntyre J. ruled that the restriction by the Law Society
of B.C. was a valid qualification under s. 1. The senior justice even
quoted Felix Frankfurter: “It was a wise nan who said that there is no
greater inequality than the equal treataent of unequals.95’ The
Andrews decision illustrates the ideological split between Wilson J.’s
bold reading of the Charter’s provisions and Mclntyre J.’s narrow and

restrictive interpretation. 4

More recently, in R. v. xgrpin Wilson J. continued her aeticulous
reading of the Charter by finding that equality rights are violated by
sections of the Criminal Code which allow persons charged with aurder
the right to a non~jury trial in Alberta but necessitate anjury trial
in all other parts of Canada. In her important ruling, Wilson J.
reaffirmed the four basic equality rights contained in s. 15 – equality
before the law and under the law, and equal protection and equal
benefit of the law.7° Unlike Mr. Justice Hclntyre’s aethod in Andreas,
Mada: Justice Wilson’s analysis identified the necessity of insuring
that each of these four basic equality rights be given their “full
independent content divorced froa any justificatory factorsnapplicable
under s. 1 of the Qhgrteg.”71 The Court stated that it would reject
the reasoning of previous decisions which had turned on the equality

before the law provisions of the §gggd1ag_§1l1_g1ggigh_§. In Inzpin.

‘°LQid., pg; Mclntyre J., at p. 25.
°91g;g., pg; Maclntyre J., at p. 10, quoting Frankfurter J. in

Qepnis v. Qgited gtates, 339 U.S. 162, at p. 184.

793. v. Iurpin (May 4, 1989), not yet reported.
’11bi .


( Wilson J . stressed a consideration of the “larger social, political,
and legal context” in determining whether inequality exists
unconstitutionally. The Court will haveto face these issues again
soon, when it ‘considers the validity of mandatory retireaent under the

equality provisions of the Charter.”

» 1 IX .1

Despite recourse to s. 1 protection, there are other ways for
governments to place restrictions on rights. The legislative override
clause (s. 33) of the _C_h§;_-__t_e_r_, permits Parliament or Provincial Legislatures
to enact legislation “notwithstanding’ the rights set out in as. 2 and 7
through 15.73 Federal and provincial governments may also initiate
legislation to alter any provision of the Constitution. Anne Bayefsky has
argued that, with the notwithstanding clause, the Charter may be
described as a constitutional bill of rights but not an entrenched one.“
Yet. despite the inclusion of the non obstanteclause, it has also been
argued that the court must still determine the balance between the
minority rights protected by the Charter and the majority’s prerogative
as preserved by s. 33 of the Charter-.75
_ The controversy arises because s. 33 does not refer to s. 1.
P While Prof. Hogg reasons that the notwithstanding clause is not subject

to the limitations of s. 1 because the framers clearly intended to give

, ”For an effective treatment of recent court of appeals cases on
mandatory retirement see Neil Finkelstein and Geoffrey Howard, “Charter
Review of Social Legislation: Mandatory Retirement As a Case Study,”

IX:2 (April 1988). Pp. 142-159.

“These are “fundamental rights”, ‘’legal rights”, and “equality rights.”
“A. Bayefsky, “Judicial Function under the Canadian Charter of

Rights and Freedoms,” in Bayefslcy, ed. Legal Theory Meets Legal

£_t:_aQ_i,ge_ (Edmonton: Academic Printing & Publishing, 1988), p. 148: –
“‘Entrenchment’ is a term which in the long Canadian debate was
consistently used to mean placing individual rights and freedoas beyond /
the reach of ordinary legislatures by putting them in a constitution

whose provisions could only be avoided by constitutional amendaent.”

if “Daniel Arbess, “Liaitations on Legislative Override under the
‘M Canadian Charter of Rights and Freedoms: A hatter of balancing
values,” ,fl.L,fi. XXI:l (1983), p. 141. 1


‘*””””””‘3″” r-mr-w–an-.;-n—y—v-—-.~.~…. .- ~..—~..—. –.:—-—. — —’~…….. . .. .._…… … “… .. …. _ _ ___ _ _


the last word to the people’s elected representatives,75 others have
explained that s. 33 must necessarily be subject to s. 1.77 Despite
the explanation of original intent, the literal possibility is still open for a
future court to limit the use of the non obstante clause. For instance,
the Supreme Court has already moved beyond the “dz-after’s intent” by
reading substantive rights into a. 7, despite the framer’s insistence
on applying the section only to procedural rights.’3

Prof. Bayefsky has reasoned that the legislative history of s. 1
suggests that the drafters intended to end parliamentary sovereignty.
In October of 1980 the proposed draft for s. 1 read:

rights and freedoms set out in it subject to such reasonable
limits as are generally accepted in a free and democratic

society with a parliamentary system of government.”
The federal government was extensively criticised for holding on to the
doctrine of parliamentary sovereignty by groups appearing before the

A Hays-Joyal Committee. Due to the political pressure exerted in

comaittee, Prof. Bayefsky explains that the words referring” to a

“parliamentary system of government” were dropped, and replaced with

reference to limits which “can be demonstrably justified in a free and

democratic society.”3° Therefore, the legislativehistory of s. 1 can

“Constitutional of Canada, gupra note 9, at p. 691. Prof.
Hogg is of the opinion that: p

. ..once a Charter provision has been overridden by a statute, the
Charter provision has no application whatsoever to the statute and
therefore there is no need to show that the overriding statute is
a ‘reasonable limit’ on the Charter provision or that the
overriding statute can be ‘demonstrably justified in a free and

democratic society. ’

I “See Brian Slattery, “Override Clauses under Section 33,” Cgn. 5.
fiev., LXI (1983), 391; cf. Daniel Arbess, su ra, note 75, at p. 133.

“See discussion of s. 7 below.

“Anne Bayefsky, “Judicial Function under the Canadian Charter of
Rights and Freedoms,” in A. Bayefsky, ed. a s
Eragtice (Edmonton: Academic Printing & 1’ublishing, 1988), pp. 140-
141, emphasis added. W 6

“Professor Bayefsky emphasises her point by quoting Federal
Justice Minister, Jean Chrétien, as he introduced the amendments to the

Hays—Joyal Committee:


be said to point to the replacenent of parliamentary supremacy. This

brings a. 1 in direct conflict with the intent of the override
provision. ‘ ”

At the time s. 33 was included, the assunption was that it would
be politically difficult to declare a law notwithstanding provisions of
the Qharte . However, s. 33 has already been used in six legislative

instances. An Act fiespecting the Constitution Act, 1982 was passed in

the National Assembly by the Party Québécois governnent to insert a

notwithstanding clause (in respect of as. 2 and 7-15 of the Qhagtgg) in

every provincial statute passed prior to April 17, 1982. The

governnent of Preaier Robert Bourassa, let the Act lapse after the five

year renewal deadline which passed in June of i987. Nevertheless,
Quebec’s Liberal government reaained undeterred and put s. 33 to use in
a sore specific context. A

Before December 1988, the Bourassa government had sponsored the

use of the notwithstanding clause on three separate occasions.31

iPreIier Grant Devine’s Saskatchewan Conservative Governlent also

inserted s. 33 into legislation.33 The preemptive fashion in which the

clause was initially invoked to avoid judicial review ointed to the

Even if the law were passed – it was a danger before that it
was alnost ilpossible for the court to go behind a decision
of Parliaaent or a legislative assenbly; but here, even if
the law is passed, there is another test, naaely that it can
be demonstrably justified in relation to this Charter.

31In ; y ‘ zu ‘ , lfifl y 1 ‘ Certain Teaghers and

a._ey~’ : .gi-_s L ;is ation Resoe tin; t e ‘e sio P ,Js of ey’ blic
gag Eaggpubiic fiegtors, c t hen tee Act t o ote

v ent o A ric ltura 0 erati s An t to i e d the
Education Act and the Act gespegting the Qgnseil ggpérieur de

’ t’on d t lend the ct Res e tin the flinistére de

lfifidgggtign. and in An ct to rovide r ett enent f a Certain
tau-vr— —n‘~ene t Iis-ute between t eye if ‘. k. y . y.

the Basgatchewag Government Employees union.

33The regional, minority language rights controversy appears to
suggest that the present Premiers of Saskatchewan and Quebec are of a
like mind in nany respects.




p inprobability of desuetude in relation to s. 33.33 Recently we have

seen in Quebec that, contrary to previous expectations, the legislative
override has become a politically feasible legislative option. The
Supreae Court is best to keep this in mind, as one of the greatest
political challenges facing it will be finding the proper balance

between parliamentary and judicial authority.3‘

V Norwlzgsrmmc Egon-our may wig
The Supreme Court’s early interpretation of the Charter has
already brought the Court to the front and centre of Canadian political
vsociety.35 A recent exanple of its impact on the national community is
the controversy generated by the response to the Court’s invalidation
of Quebec’s French-only coalercial sign provisions.35 .
In direct reply to the Supreae Court’s judglents on the province’s
sign 1aws,57 the government of Quebec invoked the notwithstanding
clause.33 According to the Court’s unanimous opinion in the Egrd case,

the evidence used to support Quebec’s Charter of the French Language
did not prove that the “requirement of the use of French only is either

I 3380 reasoned Professor Bayefsky, Bayefsky, Anne. “Judicial
Function under the Canadian Charter of Rights and Freedoms,” Mcgill Law
Journal XXXII (1987), at p. 824-825.

3‘The tension has also been outlined by Mackay and Bauman, Egg

A Courts and the Charter, supra, note 27, p. 44.

35Peter Russell, “The Supreme Court in the Eighties – Wrestling

with the Charter,” in Paul Fox (ed.), Politics: Canada, 6th ed.,
(Toronto: U. of T. Press, 1987). Prof. Russell has concluded that the

court’s function in the governance of Canada “should now be viewed as

of the sane importance to Canadian political science as the performance
of the United States Supreme Court is to students of Alerican
Politics,” at p. 151.

°5The provisions in question were enacted in 1977 by the
province’s Bill 101, also known as the Charter of the French Language.

37 ord v. uebec Attorne Generals [1988] 2 S.C.R. 712
[hereinafter Fgrdl and Qevine v. Qgebec [1988] 2 S.C.R. 790.

33It should be noted that both the provincial and the federal
charters were overridden by the notwithstanding legislation enacted by

Quebeco ‘

__.__… 1



necessary for the achievement of the legislative objective or
proportionate to it.”°9 In the opinion of the Court, since it had not
been deaonstrated that the prohibition of the use of any language other
than French was “necessary to the defence and enhancement of the status
of the French language in Quebec” or that it was “proportionate to that
legislative purpose,” the curtailnent of freedoa of expression as
protected in s. 2(b) of the Charter could not be justified under s.
1.90 On the use of the override provision of the Charter, the Court ‘
ruled that a blanket applications of s. 38, as it applied to s. 2 and
as. 7 to 15, would be peraissable as long as such an invocation dealt
with prospective derogation only. The Court properly refused to allow
retrospective application of the override provision.91 In a surprise
aside, the Court suggested that a requireaent of the predolinant
display of French, without excluding other languages, would be
justified under s. 1.

In contrast to the issue avoidance in which many politicians have
been engaging by ignoring the controversial issues being addressed by
the Supreme Court, Quebec’s Premier Robert Bourassa responded with
great haste ianediately following the Court’s judgeaent. Shortly after
the ruling, the Quebec Government decided to achieve a partial

conpromise by allowing English signs inside business preaises. This

move caused nationalists within the province to demonstrate in the
streets. Meanwhile, the Premier’s invocation of the non obstante clause
to require that only French be used on the exterior of collercial
signs, was set with almost unanimous condesnation outside Quebec as an
unnecessary curtailment of rights and freedoss.92 Prominent anglophone

sinisters within the Bourassa governnent soon offered their

resignations. One journalist described the use of the notwithstanding

°9Eorg, supra, note 87, at p. 779.
9°1g;g., at p. 780.
91;g;g., at p; 743.

93With the exception of La Fédération des francophones hora Québec
and the Secretary of State, Lucien Bouchard, the use of the

lnotwithstanding clause in Bill 178 was set with widespread disapproval

on the other side of the Ottawa River.



clause to circumvent a Suprene Court judgement as “a political atonic

This is a classic example of the Court’s resounding influence.
For over a decade, in the name of collective rights, Quebec has 8
infringed upon the ninority right of expression in English. Yet, by
interpreting such expression as a priaary right, it is the Supreme
Court which finally forced Quebec to confront the issue of fundamental
freedoms and encouraged national awareness of the treatment of
linguistic minorities in the province. In fact, the dismay over
Quebec’s use of section 33 was so intense outside the province that it
led the leader of Manitoba’ Progressive Conservative Party, Gary

Filmon, to withdraw his support for provincial ratification of the 1987

Constitutional Accord9‘.


— Prior to April 17, 1982, the authority of judicial review in
Canada rested on the principle of implicit necessity, as it had in the
United States after Chief Justice John Marshall’s famous fiaggggx
decision.95 Sone scholars held that judicial review was implicitly

guaranteed by as. 96 to 101 of the Constitution Act, 1867.9‘ Then

93Gilles Lessage, “Une dérogation légitine,” Lg_Qgyg;g (January 5,
1989), p. 12.

94In fact all three parties in the province agreed to suspend
debate on the constitutional anendnent to protest Quebec’s action. Ihg
globe and Mail (December 20, 1988), pp. A1, A8. British Columbia

8 Premier Bill Vander Zaln has also expressed misgivings about Quebec’s

use of the notwithstanding clause proapting his to modify his original

support for the 1987 Accord. The Constitution Act, 1987 will be
discussed in the following chapter.

95Marbury v. Madison [1803] 1 Cranch 13?. Chief Justice Marshall

wrote: 5
Those who have framed written constitutions contenplate then as

forming the fundamental and paranount law of the nation, and,
consequently, the theory of every such governnent lust be, that an
act of the legislature, repugnant to the constitution is void.

95The pundits in question are Hillian Lederaan and Noel Lyon, see
Mackay and Baunan, The Courts and the Charter, supra, note 27, p. 43.



Canadian Supreme Court recognized in the A;§x_£oLg§h decision that it

had a “high duty” to ensure that the legislatures “do not transgress

the limits of their constitutional mandate and engage in the illegal
exercise of power”;9’ yet, this constitutional function was not
explicitly entrenched.( A

,Before 1982, the power to invalidate provisions inconsistent with
the Canadian Constitution was determined pursuant to the Statute of
Wegtlinster, 1931, s. 2. of the Qplopial Lgws Validity Act, 1865, which
established the invalidity doctrine.“ The doctrine held that any act
of Parliament or a provincial legislature which overstepped the
constitutionally allocated powers of the Constitution Act, 1867 could
be deened ultra vires or repugnant. Section 52, of the Qonstitutiog 1
Act, 1982 is revolutionary in this context.; It not only explicitly
places the Charter and the rest of the Constitution in a position which
is unalterable by the nornal legislative process, but it also.
distinctly mandates judicial review. The powerful section reads:

The Constitution of Canada is the supreme law of Canada, and
any law that is inconsistent with the provision of the
Constitution is, to the extent of the inconsistency, of no

force or effect. 1
The Supreme Court has interpreted its power of review under the

priaacy clause, as to include conmon law and regulations as well as

97Amax Potash Ltd. v. Saskatchewan [1977] 2 S.C.R. 576, at p. 590.

Writing for the court Dickson J. (as he then was) explained that the
wisdom of enactlents consistent with the Canadian Constitution should
not be questioned by the judiciary, but those inconsistent lust surely

be reviewed by the courts.

9°Statute of Westminster, 1931, s. 2 of the Colonial Laws Validity
Act, 1865 (U.K.) 28 & 29 Vict., c. 63:

Any Colonial Law which is or shall be in any respect ,

repugnant to the Provisions of any Act of Parlialent

extending to the Colony to which such Law lay relate, or

repugnant to any Order or Regulation made under Authority of

such Act of Parliament, or having the Force and Effect of

such Act, shall be read subject to such Act, Order, or

Regulation, and shall, to the Extent of such Repugnancy, but

not otherwise, be and remain absolutely void and inoperative.

From Joseph Magnet, Constitutional Law of Canada: Cases, Notes and

Materi ls, (Toronto: Carswell, 1984), pp. 26~27.


statutes.9° Nonetheless, the Court has exhibited caution in its
invalidation. In 1985, it held that all the laws, since 1890, enacted
by the Manitoba Legislature in English only, were invalid and “of no
force or effect,” because they violated the fippitpba Act, 1870 (part of
the “Constitution of Canada” according to s. 52(2)).1°° Yet, the Court
granted tenporary validity to the laws in question by allowing the
Province of Manitoba tine to reenact the: in both official languages as
required by the Constitution. By ensuring the continuity of the rule
of law, the Court avoided a legal vacuuu in Manitoba, and exercised its
new-found authority under the Constitution Act, 198 .

However, Williaa Conklin is highly critical of the Manitoba
Language Rights decision because, in his view, the Court unnecessarily
introduced two new constitutional doctrines (the de facto doctrine and
the doctrine of state necessity) which have both been used by Third
World courts to constitutionalize illegal regines in the past.1°1
Prof. Conklin is uncomfortable with the fact that the Court was
“willing to allow the government a ‘temporary reprieve’ from compliance

with the Constitution ‘in order to preserve society.’”1°3 Yet, with

(respect, Prof. Conklin’s proposed alternative is unclear.

Minority language rights have traditionally been a contentious
issue on the Canadian political scene. The Supreme Court triggered a
new controversy by its February 1988 decision that Saskatchewan’s 1886
guarantee of bilingual statutes was still valid. Since the provisions
were not constitutionally entrenched, as they were for Manitoba, the
Court ordered Saskatchewan to either translate all of its statutes into

99Dale Gibson, The Law of the Chprter: Generpl Principles,
(Toronto: Carswell, 1986), p. 186. Prof. Gibson quotes Dickson C.J.

in Operation Disnantle Inc. v. The Queen, infra, note 175, “all acts
taken pursuant to powers granted by law will fall within a. 52.”

1°°Language Rights pnder the Manitoba Act, fie. 1879 [1985]
S.C.R. 721 [hereinafter Manitoba Language Eights].

1°1Willian Conklin, Ina es of Constituti n (Toronto: University
of Toronto Press, 1989), p. 26. ~

1°3Ibid., quoting fron Manitoba Lan ua e Ri hts, supra, note 100.
at p. 763i~j.



French or introduce a bill to repeal the legislation.1°3 Despite the
best wishes of the Prime Minister, the federal language colaissioner,
and sympathetic Canadians, it appeared that the Francsaskoisl“ would
be on the losing end of the dispute.1°5 However, had the Supreae Court

‘not acted to remind Saskatchewan of its legal responsibility, the

provincial legislators might have avoided public awareness of their
behaviour. Unfortunately, the Court was limited in what it could order
the province to do. i

The Saskatchewan debate illustrates the advantage of
constitutionally entrenched ninority language rights. Had foraer
Saskatchewan Prelier Allan Blakeney chosen to join New Brunswick’s lead
in the constitutional preservation of Canada’s official languages
during the 1981 constitutional negotiations, under s. 52(1) the Supreme
Court could subsequently have invalidated any attempt by an intolerant
Legislature of Saskatchewan to abrogate linguistic rights.1°5

Thus far, the Supreae Court has invalidated numerous laws and
various provisions of the Criminal Code because they breached rights
and fundaaental freedoms outlined in the Charter. Most notably, the
Court determined that proof of intentional dangerous conduct causing
death could not be substituted for proof of ‘acne rea’ with respect to
the death of a victim. Applying its interpretation of s. 7 from fig;
B.C. Motor Vehicle, the court held that the presumption of innocence,

1”3The Court did not question the validity of the existing

unilingual statutes as it did in Manitoba Language Right . p

1°‘Francophone citizens of Saskatchewan.

1°5They may wish to offer special thanks to Premier Bourassa’s
endorsement of the Devine govern|ent’s position and treatment of the
English minority in Quebec.

1°5For political analysis of Saskatchewan’s position on language
during the patriation process see Robert Sheppard and Michael Valpy,

Ihe flational Qeal: The Fight fgr a Canadian Constitution, (Toronto:

Fleet Books, 1982).


protected byes. 11(d) of the_(_._‘._l;a__r_,_t__e;__r_-_, was violated by. .. 213(4) of the
griginal Qgde.1°7

l!2lQlAL_E£!£Dl£§ s ‘
The primacy clause of’The Cgnstitution Act, 1282 is not the only

judicial remedy at the disposal of the invigorated Supreme Court.

Section 24, has increased the Court’s political role sore than any
other provision included in the Charter. The provision is based on the
philosophy that in order to preserve certain liberties the court must
be able to assume the role of provider as well as protector. “It is a
vain thing,” as we have been reminded, “to imagine a right without a
reIedy.”1°3 For this reason, the first part of s. 24 gives the court a
broad license of enforcement. The section holds:

24.(l) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of conpetent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.

The tern “have been infringed or denied,” in the past tense,

1°78. v. Vaillancogrt.[l987] 2 S.C.R. 636. Section 213(d) of the
Crininal Code provided that: i ‘i l
Culpable hoaicide is murder where a person causes the death
of a human being while committing or attempting to coaait …
robbery … whether or not the person means to cause death to
any hunan being and whether or not he knows that death is
likely to be caused to any human being, if … he uses a
weapon or has it upon his person during or at the time he
commits or attempts to conait the offence … and the death
ensues as a consequence.
Mr. Vaillancourt had been charged with murder, after his accomplice
fired at and killed a Ian in a pool hall. The accused testified that
he did not intend anyone to be killed and was unaware that his partner

was carrying a loaded gun. a

1°3Per Holt C.J. in Ashb v. White (1703) 2 Ld. Rayu. 938, at p.
953, 92 E.R. 126 (Q.B.). Gmoted by Dale Gibson, “Enforcement of the
Canadian Charter of Rights and Freedols,” in Walter Tarnopolsky and

Gérald~A. Beaudoin, The Canadian Charter of Rights and Ereedoas:

Commentary (Toronto: Carswell, 1982), p. 489.


points to a stricter standing requirement for s. 24 than for 52(l).1°9
Nevertheless, the enforcement section was devised to empower the
judiciary with the authority to provide ‘creative remedies’ that

4 previously would not have been available, regardless of proper

standing.11° For instance, the previous draft of s. 24 read:

Where no other remedy is available or provided by law, the
individual may, in accordance with the applicable procedure
of any court in Canada of competent jurisdiction, request the
court to define or enforce any of the individual rights or
freedoms declared by this Charter, as they extend or apply to
him or her by means of a declaration of the Court or bymeans
of an injunction or similar relief accordingly as the

circumstances require.111
The important difference in the revised s. 24 is that it enables the

Court to grant remedies it considers “appropriate and just in the
circumstances,” and therefore enhances judicial discretion.113 The
range of remedies for breaches of the Charter is outlined in the
broadest possible wording which was clearly meant to include more than

declarations, injunctions or similar relief.113 In respect to

9 enforcement, Prof. Hogg has suggested, that the Charter is in a

1°9See H088. Constitytionglghgw of Canada, su ra, note 9, at p.
695, n. 233. Prof. Hogg’s View can be contrasted with Professors
Knopff and Morton who argue that s. 24 appears to allow a person to
litigate any Charter issue without demonstrating a personal interest

distinct from the public at large. Cf., Knopff and Morton,
Constitutionalism Citizenshi and Societ in Canada, supra, note 5.

11°James Crossland has emphasised the importance of the section
with respect to the potential for judicial policy making. See J.
Crossland, The Role of the Canadian Courts in the Evo ution o
Qggadign Constitutionalisl (MLA. Thesis. McGill University, March
1987), chapter 4. 4 ‘

111From Morris Manning, Rights, Freedoms and the Courts,

(Toronto: Edmond Montgomery Ltd., 1983), p. 460..

113While the Constitution of the United States contains no
provision for remedies outside its supremacy clause, Dale Gibson has
indicated that the constitutions of India, Nigeria, West Germany, and
“a considerable number of smaller countries” include “explicit remedial
provisions of the type contained in section 24(1).” See Law of the

Qhartgg, supra, note 99, at p. 192.,
113Cf. Rights, Freedoms and the Courts, supra, note 111, and Ken

Cooper-Stephenson, “Tort theory for the Charter Damages Remedy,” Sask.
LL_E§!; LII:1 (1988), pp. 1587.



“preferred position” since s. 24(1) is available only to a breach of
the Charter, while other parts of the Constitution say only be
challenged by referring to the traditional Iethod of invalidation.11‘
Prof. Hogg has also recognized s. 24(1) as the source otbothi
‘defensive’ remedies, such as the exclusion of evidence, and C
‘affirmative’ remedies to redress the wrong suffered by the applicant,
or to encourage future compliance with the constitution.115 As an
example of an affirmative remedy created by the judiciary, Andrew
Dekany presents the hypothetical situation of a criminal trial where it
is established that a police officer failed to infer: the accused of
the reason for his arrest, and thereby infringed his guaranteed right.
Under s. 24(1) of the Charter, according to Mr. Dekany, a court could
reprimand the police officer by referring his actions to a police
disciplinary board, even if it was not otherwise empowered toido so.115
In an early use of 24(1) the court confirmed the Supreme Court of

Nova Scotia’s order to dismiss charges after an appellant had waited
eleven months for a trial judge to make a decision on a motion for at
directed verdict.117 Since the accused’s right to be tried within a
reasonable time had been infringed, the court of competent jurisdiction
had “a broad discretion as to reaedies.”‘13 However, in another
judgement the Court specified that delay aust be attributable to)
Canadian authorities in order for the Charter to be applicable.119 In
the Mellino case, there was a seventeen month delay between the
respondent’s discharge following an initial extradition hearing and the

initiation of a second. (Yet, since the delay was caused by the

11‘Constitutiona1 Law of Canada, ggpga, note 9, p. 694.
115_1_g;_q., pp. 696-697.
‘15Andrew Dekany, “An Overview of the Canadian Charter of Rights
and Freedoms,” Advocates Societ Journal, VI:1 (1987), p. 18.
117E. V. Rahey [1987] 1 S.C.R. 588.

1132gg’Estey and Wilson JJ., Ibid. The justices werequick to)

caution: g _
…this (does not lean that all renedies are available for the

violation of all rights. The reaedy or remedies lust be tailored
to the particular right which has been violated.

119Argentina v. Mellino [1987]p1 8.0.8. 536 [hereinafter selling].



Governaent of Argentina, the majority rejected Hr. Mellino’s
application for judicial remedy under 24(1).13°
The court has shown little reluctance in eaploying judicial

remedies for breaches of the Qhaztgg. In E. v. §mit , the mandatory
seven year Iinimua sentence imposed by s. 5(2) of the Narcgtics Control
Ag; was invalidated as unjustified cruel and unusual punishaent.121
Edward Dewey Smith, who had pleaded guilty to importing seven and a
half ounces of cocaine into Canada, was therefore spared numerous
months in prison for an offence which the Court found to be designed

for diasuading the trafficking not the mere possession of narcotics.

Section 15(2) of the Charter expressly deals with the legislative
renedy of affirmative action. The equality section of the Charter is

said not to ,

preclude any law, program or activity that has as its object
the amelioration of conditions of disadvantaged individuals
or groups including those that are disadvantaged because of
race, national or ethnic origin, colour, religion, sex, age
or mental or physical disability.133

In the United States many legal battles have been waged on the

constitutionality of affirmative action legislation.123 The validity

13°Even Madaae Justice Wilson, who had consistently favoured the
rights of the accused, sided with the majority. Mr. Justice Laser
was alone in dissenting. For Laser J, it was not relevant whether the
delay was due to the acts of the Argentinean or the Canadian
authorities. In his view an unexplained seventeen-month delay
constitutes an infringement of the respondent’s s. l1(b) right. Ibid.,

at 540.
121 . v. lit Edward Dewe [1987] 1 S.C.R. 1045.

1z;Q§££L§£a 8- 15(2)-

133See DeFuni§ v. Odegaard (1974) 416 U.S. 312; Fullilove v.
fllyggmigg (1980) 448 U.S. 448; Griggs v. Duke Power Co. (1971) 401 U.S
424; fiegents of the University of California v. Bakkg (1978) 438 U.S.

265; and United Steelworkers of America v. Weber (1979) 443 U.S. 193.
Eor commentary see Robert Fullinwider, The Reverse Discrimination
Qgntggxgggx (Totowa, NJ: Rowan and Littlefield, 1980); Terry Eastland
and William Bennett, Counting by Race (New York: Basic Books, 1979);


of affirmative action programs was first challenged in 1974 when the.
U.S. Supreme Court heard a case in which a white law school applicant
was denied admission in favour of less qualified minority
applicants.134 The first case eventually proved moot, but in 1973 and
again in 1974 Allan Bakke applied for admission to the University of
California Medical School at Davis and was twice rejected on the basis
that there were to many properly qualified candidates. jet, Mr. Bakke
later learned that his Medical College Admission Test score and his
undergraduate grades were superior to many of the minority students
which were accepted during the years he was refused admission. The
Davis medical school had set aside sixteen of its 100 openings for
minority candidates, many of which were statistically less qualified
than Allan Bakke. Mr. Bakke’s lawyers successfully argued that the
University of California medical school’s admission procedure p
contravened the equal protection clause of the U.S. Constitution and

Title VI of the Civil Right Act of 1964.125

However, unlike the American Constitution the Canadian Charter
expressly recognizes the constitutionality of affirmative action.
Although Canadian affirmative action is not subject to the equality
requirements of s. 15, it nonetheless has to be squared with the limits7
in s. 1. For this reason, Russell Juriansz anticipates that s. 15 of
the Charter will “spawn a great deal of litigation” in connection with
affirmative action.13°

The 15(2) clause of the Charter has never been invoked. However, 1
the Supreme Court of Canada has unanimously recognized the power of

human rights tribunals to establish hiring quotas for coapanies that

John Livingston, Fair Game? Inequality and Affirmative Action (San
Francisco: 9. B; Freeman and Company, 1979); and Timothy 0’Niel, Bakke

and the Politics of Eguality (Middletown, CT: Wesleyan University
Press, 1985).

12‘Ibid., DeFuni§_v. Odegaard.

125Regents of the University of Cgli§Q;nia_1;_§akkg (1978), ggpgg,
note 123.

135R.G. Juriansz, “Equality Rights, Affirmative Action,” in N.R.

Finkelstein and B.M. Rogers, eds., Charter lssues in Civil Cases
(Toronto: Carswell, 1988), p. 150.


discriminate against women and other disadvantaged groups.137 Although
the Action Irgvail deg Eemmes case did not involve the ghgptgr, it is
of particular relevance since the court stated that “in any employment
equity program there simply cannot be a radical dissociation of remedy
and prevention for there is no prevention without some formof
remedy.”1«33 Through implication, Dickson C.J. hinted at a rationale
the court may use in enforcing rights under s. 24.1 His Lordship held
that remedies must “not be merely compensatory” but “prospective,””9
and that ”systematic remedies must be built upon the experience of the
past so as to prevent discrimination in the future.”13° The case may
have very significant consequences including the growing use of
statistical evidence in litigation. Such evidence was used for the
first time in Action Travail des Femmes to make a case for

discrimination in Canada.131


There are numerous areas in which the court has directly exercised
its new authority under ss. 24 and 52. The most dramatic change has
occurred with the administration of criminal justice. The framers of
the Charter expressly dealt with this issue in the second part of the

enforcement section which provides that:

24(2). Where, in proceedings under subsection (1), a court
concludes that evidence was obtained in a manner that
infringed or denied any rights or freedoms guaranteed by this
Charter, the evidence shall be excluded if it is established
that, having regard to all the circumstances, the admission
of it in the proceedings would bring the administration of

justice into disrepute.

13″9§__v. Canada (Human Rights Commissign) [1987] 1 S.C.R. 1114
[hereinafter Action Travail des Femaes].

m1bid., M Brian Dickson C.J.C., at pp. 1141-1142.
”9_l__b__i__d_., at p. 1142.

13°1bid., atp. 1145.
. 131On the use of evidence in similar cases see Béatrice Vizkelety,
Eroving Qisgrimination in Canada (Toronto: Carswell, 1987).

Y’ ‘1’*W”.. ‘1 H “”J’C””a§”‘V1O% -v-1’-1

Pu “‘I(‘fi>I’ mvw- “-


Section 24(2) was included to add an additional remedy, that would
not be subject to the same limitations as 24(1).133« (While, 3. 24(1)
deals with the enforcement of a substantive right, s. 24(2) deals with
the exclusion of evidence obtained through breach of a substantive
right.133 The court has responded by interpreting the clause in “a bold
manner. Following the lead of the Supreme Court, the judiciary has
moved away from the earlier ‘crime control’ model, and closer to the
American-style ‘due process’ model.13” In the United States the
exclusionary rule was incorporated to state criminal proceedings by the
Warren Court.”-5 Although the rule has been qualified in recentyears,
it has applied to American federal proceedings since 1914.135

The exclusion of evidence has been said to be at odds with the
Tory tradition in Canadian history. Robert Fulford, among others, has
expressedfear that the Charter will reverse the preference in Canadian
law that “has tended to favour collective rights over individual
rights.”137 Yet, as Walter Tarnopolsky has emphasised: “A bill of
rights must protect the savory and unsavory or it will protect no one
at all.”133 The dictum cited by Prof. Tarnopolsky (as he then was) is
equally applicable to constitutionally established rights. 4

The Supreme Court made use of s. 24(2) for the first time in

133Rights, Freedoms and the Courts, supra, note 111, p. 460.

133Gerald Gall, _T_h_e_ Canadian Le al 8 stem, 2nd ed. (Toronto:
Carswell, 1983), p. 60.
134F.L. Morton, “The Political Impact of the Charter of Rights and

Freedons,” XX:1 C.J.P.S. (March, 1987), p. 51. In Prof. Morton’s
opinion, “Canadian judges have shed their pre-‘-Charter style of
deference and self-restraint.”

135See Mapp v. Ohio [1961] 367 U.S. 643.

13°See Weeks v. U.S,_ [1914] 245 U.S. 618 and Cgnstitutignal Law gf

Canada, supra, note 9, at 698,,n. 250. Prof. Hogg cites fl_i_;_c_v_._
Williams [1984] 104 S. Ct. 2501, and U.S. v. Leon [1984] 104 S.Ct.

3405, as instances in which the rule was restricted,
137R. Fulford, “Charter of Wrongs,” aturda Ni ht Ma azi e,
(December, 1986), p. 8.

135W. Tarnopolsky, “The Bill or Rights: Help or Hinderance,”
Lecture Series, (Toronto: Audio Recording, 1981).



Ihgregs v. The Qgee .139 Since the police had failed to notify the

accused of his s. 10(b) right “to be inforaed of the right to counsel

on arrest or detention,” the court decided that the evidence from a
breath test should be excluded from trial because, in the view of the .
majority, its admdssion “would bring the administration of justice into
disrepute.”14° In the Iherens case,.Iustice McIntyre’s dissent was the
first differing opinion after the first seven Qhagter judgments proved
unanimous. The dissenting justice found that the exclusion of evidence
“would bring the administration of justice into disrepute.”

In the Clarkson ruling, a murder conviction was overturned as the
accused’s intoxicated confession was excluded.141 Writing for the
Court, Madam Justice Wilson held that a woman’s “drunken assertion that
there was ‘no point’ in retaining counsel in the face of a.murder
charge could not possibly have been taken seriously by the police as a
true waiver of her constitutional right.” In 1986, after the Clarkson

Vdecision, Prof. Russell predicted that Canada would have a much more

liberal exclusionary rule than the United States, if the majority’s
generous treatment of s. 24(2) prevailed in subsequent cases.1‘3
However, the Supreme Court was quick to establish the factors to
be considered when making a decision under 24(2).143 The Qgllins case
emphasises that the court must have “regard to all the circumstances”
when rendering a judgement under the exclusionary clause. A possession
of heroin charge was quashed because it was substantiated after the
police had entered a pub and administered a throat—hold on Ms. Collins.
In two other decisions handed down on the same day as Collins, the
court dismissed applications of 24(2) because the police had not acted

139[l985] 1 S.C.R. 613.

1‘°The breach of s. 10(b) and exclusion under s. 24(2) were
treated as separate questions.‘ 8

1413. v. Clarkson (1986), 25 C.C.C. (3rd) 207.
143P. Russell, su ra, note 85, p. 162.
1*3fi. v. Cgllins [1987] 1 S.C.R. 265. [Hereinafter Cgllinsl.



inadvertently and in good faith.144 Yet, in the Eghoretsky ruling, Mr.
Justice Antonio Laser declared that the law enforcement authorities had
‘wilfully and deliberately’ violated the accused’s right under s. 8
against an unreasonable search and seizure, by ordering a doctor to
take a blood sample while the accused was in an ‘incoherent and
delirious’ state.1‘5 The court was satisfied, under the Collins

specifications, that allowing the blood sanple would have brought the

administration of justice into disrepute.1‘5

In the Hanninen case, the police informed the accused of his right
to remain silent and obtain counsel. However, although Mr. Manninen
indicated that he was not going to say anything until he saw his
lawyer, the questioning continued.1‘7 The accused was not even offered

a telephone to obtain counsel. The Court therefore ruled that the

action was not justified by any urgency and that the police officers’

manner, of ignoring the rights they had just read the accused, was
grounds for exclusion.143 V

%The Court has also held, however, that the onus is on the accused
to prove that the right to counsel has been denied.149 The flaig
decision quoted and confirmed Tarnopolsky J.A.’s rationale cited from a

previous case wherein the former professor said:

14‘See R. v. Hamill [1987] 1 S.C.R. 301, and R. v. Sieben [1987] 1
S.C.R. 295. ’ i

145R. v. Pohoretsky [1987] 1 S.C.R. 945.

145Although the sample showed an unacceptable level of
intoxication, his Lordship declared the evidence inadnissable because
the conduct of the police “was to conscript the appellant against
himself.” Ibid., at p. 949.

147gg_v. Manninen [1987] 1 S.C.R. 1233.

143The appeal was dismissed because: u

…the respondent had the right not to be asked question, and he
must not be held to have implicitly waived that right simply
because he answered the question. Otherwise, the right not to be
asked questions would only exist where the detainee refused to
answer and, thus, were there is no need for any remedy or
exclusionary rule.

I_§l_., at

1‘9Bg_yg_§g;g [1987] 2 S.C.R. 537. [Hereinafter flaigl.


I an of the view that, absent proof of circumstances
indicating that the accused did not understand his right to
retain counsel when he was inforued of it, the onus has to be
on his to prove that he asked for the right but it was denied
or he was denied any opportunity to even ask for it.15°

Even if the accused proves that his right to counsel has been infringed

aunder the onus requirement established in gaig, the evidence may not

necessarily be excluded under 24(2) of the Charter. For instance, if
the accused is found to be “deliberately attempting to lake the
investigation difficult” and is “actively obstructing it” evidence will
be adnitted.151 Mclntyre J. has emphasised that, “the Charter was not
intended to turn the Canadian legal system upside down.”153 Recently,
Mada: Justice Claire L’Heureux-Dubé seems to have echoed McIntyre J.’s%
sentiments when she ruled against the exclusion of evidence in R. v.
Dgguay.153 L’Heureux~Dubé J. cited the majority opinion of the U.S.
Supreme Court in U.S. v. Leon where White J. determined that the
indiscriminate exclusion of “inherently trustworthy tangible evidence”
unreasonably obstructs the criminal investigation process and leads to
disrespect for the judicial process.154 Likewise, in the Qggpay case,
L’Heureux—Dubé J. refused to characterize the questioning of suspects
in an unmarked patrol car as unlawful detention on par with torture or
the practices of the Star Chamber as the trial judge and the najority
of the Court of Appeal had suggested. “In the complete absence of

conpulsion of any kind,” wrote the dissenting justice, “it is my View

quite an exaggeration to suggest that two minutes spent in a police car

15°Ibid., at p. 540, from R. v. Anderson [I984], 10 C.C.C. (3rd)
417 (out. C.A.), at p. 431.

151Lamer J., R. v. Tregblay [1987] 2 S.C.R. 435, at 439.

152Mills v. R. [1986] 1 S.C.R. 863, at 953. The majority seems to
have applied this reasoning in its restrictive interpretation of the
dangerous offender provision in the Criminal Code with respect to
indeterminate detention. See R.v. Lyons [1987] 2 S.C.R. 309 and B;*l;
flilne 2 S.C.R. 512. _

153R. v. Duguay (1989), 56 D.L.R. (4th) 46 [hereinafter Quguay].

154;¢gg., at p. 73. Quoting U.S. v. Leon, sgpgg, note , at pp.



‘ fall just short of torture.”155 L’Heureux-Dubé noted that the victims

of the robbery had reported the incident and sought help from the
police and criminal process. As active participants in that
investigation, the victins had been very co-operative with the police,
yet the puisne justice remarks:

The process yielded nothing in return for their involvement
and co—operation with the police. They were aware that the
youths confessed that they were the culprits and that some of
the stolen goods were found in their possession. I agree
with Zuber J.A. (of the Ontario Court of Appeal) that it is
“more likely that the exclusion of the evidence in this case
will bring the administration of justice into disrepute.”155

The dissent of the learned justice encourages many questions which the
Court will have to address with respect to the exclusion of evidence
and the repute of the administration of justice. Before being seated
on the nation’s highest bench, John Sopinka, one of the Supreme Court’s
newest members, expressed a preference for similar restraint.157 The
lower courts appear to be of the same mindr The Ontario Court of
Appeals decided in the recent Lggag decision that confessions obtained
while police officers posed as inmates were inadmissable.153 On the
whole it appears that the courts will continue to carefully guard the
integrity of the criminal process.
Thus far, the Supreme Court has had to deal with criminal issues
relatively often. Of the first 92 decisions that the Supreme Court has
issued under the Charter 70% dealt with criminal law.159 Patrick‘

Monahan has described the criminal sections of the Charter, ss. 8 to

155Du uai, at pp. 79-80.
155Ibid., at p. 82.

157See J. Sopinka, “The Charter: A View From the Bar,” in Géra1d-

A. Beaudoin, ed. Charter Cases 1986-87 (Montreal: Editions Yvon Blais,
1987), pp. 403—417, esp. p.405r407. For evidence of Mr. Justice
Sopinka’s conservatism on the bench consider the Laggggggpa case where,
unlike the majority, Sopinka J. ruled that there need be only monetary
payment to Corona and Lao need not rightfully transfer the lucrative
gold mine to the swindled smaller company.

1538. v. Logan (1989), 57 D.L.R. (4th) 58 (Ont. C.A.).

159Michel C. Auger, “Une majorité d’affaires criminelles,” Lg
Qevoir (14 avril 1989), p. 1.


-.-—<-V 5-VVGKVI ~ ‘ ,r1-:- U—


14, as an “attempt to counterbalance the overwhelming advantage

enjoyed by the state over the individual in the context of legal
proceedings.”1°° As seems to be his attitude with all Charter
provisions, Michael Mandel has demonstrated himself ever ready to
condemn the documents criminal justice sections.v Prof. Mandel claims
that although it appears “more important to acquit the innocent than to
convict the guilty” this fact “seems to have noting to do with
humanitarianism or crime prevention and everything to do with public

relations.”151 Like a cascade of failing fireworks, one conspiracy

theory follows another in The Chgrter of Rights and the Legalization of

. Politics in Canada.

Despite Prof. Handel’s criticisms, the Supreme Court has recently
delivered a judgement that may prove to be the most significant
decision since Roncarelli v. Duplessis was issued thirty years ago.1°3
In Nelles v. Attorney-General of Ontario, a nurse won the right to sue
the attorney-general for malicious prosecution.1°3 The police had
visited Susan Nelles at her home in 1981 and began to inquire about her
knowledge of infant murders. After she interrupted their questioning
to ask permission to consult her lawyer, the police became convinced of
her guilt.154 Although considerable evidence became available
suggesting that other nurses could have committed the murders, the
criminal prosecution was relentlessly continued. Ms. Nelles became the
scapegoat and prime suspect; her reputation was tarnished. After a
preliminary hearing finally discharged her on all four murder counts,

Nurse Nelles sought the right to sue for malicious persecution.

1‘°Politics and the Constitution, supra, note 21, p. 110.

1‘1The Charter of Rights and the Legalization of Eolitigs in

Canada, supra, note 4, p. 146. For a more objective analysis on these

issues see James Morton and Scott Hutchison, Ihe Erespmptiop gf
Innocence (Toronto: Carswell, 1987).

1‘2fioncarelli v. Quplessis [1959] S.C.R.“125. The 1959 case

demonstrated that the executive cannot escape the rule of law.

1‘3Nelles v. Attorney-general Q; Qntarig (August 14, 1989), not

yet reported [hereinafter Nelles].

1“Kirk Makin, “Top court gives Nelles the right to sue,” Ihg
Globe and Hgil (August 15, 1989), pp A1-A2.


While English and American courts have asserted prosecutorial
inunity, the Supreme Court of Canada took a bold step in the flelles

In the majority opinion, Mr. Justice Lamer noted that “granting
an absolute iuunity to prosecutors is akin to granting a licence to
subvert individual rights.’’“55 T Laser J , was joined by Dickson C.J. and
Wilson J. , in observing that “the existence of an absolute immunity is T
especially alarming when the wrong has been committed by a person who
should be held to the highest standards of public conduct in exercising
the public trust.” Sopinka J . took no part in the decision because he
had been involved in the case as a lawyer for Ms. Nelles before being

appointed the Supreme Court. Madame Justice L’Heureux-Dubé dissented
from this important holding. It has already been predictedthat the
case will bring about “one of the most drastic changes to the criainal
justice system ever.””5 By ‘going much farther than the judicial
processes in both the United Kingdom and the United States, E_g,l__l___e;_§ sets
into focus the Supreme Court of Canada’s legal and political commitaent

to civil liberties and public accountability.


The Supreme Court’s new authority under The Constitution Act, 1982
is not limited to increased invalidation and remedial power, the vague
wording of the Charter has given the Court great interpretive power
which has indirectly lead to a creative defence of rights. For
instance, section seven was originally intended to be a procedural
rather than substantive provision,1‘7 however the court has taken great
freedom with the definition of the “right to life, liberty, and

1‘51bi .
“‘fl>_i_d., Mr. Makin quotes Paul Culiver, president of the Canadian
Association of Crown Counsel.

1‘7See Patrick J . Honahan and Andrew Petter, ”Deve1opaent in
Constitutional Law: The 1985-86 Term,” fiupreae Court Law
ev’ew, IX (1987), pp. 78-102. The shift from procedural to
substantive considerations has also been noted by Cynthia Williams,
“The Changing Nature of Citizen Rights,” Constitutionalism, Citizenship

. __.s__au ra. note 5. p- 124. E




security of the person and the right not to be deprived thereof except
in accordance with the principles of fundamental justice.”1“ Such
judicial activity has caused Richard Devlin to describe the provisions
of the constitutional text as being “open-ended, promiscuous, and
perennially pregnant” in nature.159
In Hunter v. gouthan, Dickson C.J. declared that the “search

warrant provision contained in the Criminal Investigation Act
contravened an individual’s right to be secure against “unreasonable
searches and seizures.”17° Thecourt ruled that a search warrant can
only be “reasonable” if it is pre-authorized by an independent and
impartial third-party. Echoing Lord Sankey’s “living tree”
suggestion,171 it was emphasised in Hunter that notwithstanding the
intentions of its drafters, the Charter Imst be “capable of growth and

development over tie to neetnew social, political and historical

realities often unimagined by its fraaers.”1’”‘~ V
The court dealt with procedural equality under s. 7 in Sipgh v.

Minister of Employment and Immigration by striking down provisions of
the Immigration Act which do not require an oral hearing at the final
stage of the appeal process.173 As a result of the ruling, refugees
are now entitled to an oral audience upon having their written
application, for refugee status refused. In subsequent judgaents the
Court has also moved to entertain substantive consideration. In the
Motor Vehicles Reference, the Court struck down an “absolute liability”
provision of an act of the British Columbia Legislature. The impugned
article had prescribed iaprisonaent for individuals convicted of

driving without a valid driver’s license, regardless of whether the

1“Section 7 of the Charter. C

3“Richard F. Devlin, “Ventriloquisn and the Verbal Icon: A
Content on Professor IIogg’s ‘The Charter and American Theories of

Interpretation,” Q.fl.L.J. XXVI (1988), p. 17.

17°flunter v. Southaa Inc. [198l]S.C.R. 145. [Hereinafter fly_n_tg;].
1“See chapter I. I
1’”supra, note 170, at p. 155.

1733111}! e 81.
1SoC.R‘o 1779

…‘ .—- .3.“ .


accused was aware of the expiry of the licence. 1’” The court found
the act to be inconsistent with “principles of fundaaental justice” as

guaranteed by s. 7.


nsvn-zwnzc sxggmzivz gangs \

In Operation Qisaantle Inc. v. The Queen, the Supreme Court
agreed, for the first tine, that cabinet directives were subject to
judicial review.”-” The Qismantle case saw a coalition ofpeace,
labour and other groups challenge the constitutionality of Ottawa’s
agreement to perait the testing of the unarmed American cruise missile
in Canada. The groups contended that the agreement increased the

likelihood of nuclear war, and therefore threatened to infringe the

right of Canadians to “security of the person” under s. 7 of the

, Charter. In deciding to hear the case, the court did not adopt the

“political questions” doctrine as used by the U.S. Supreme Court in

Baker v. Car . 175

Murray Rankin and Andrew Roman contend that the Disnantle decision

is not very surprising because it follows a larger trend.177 To be

» sure, during the 1980’s, the extension of substantive judicial scrutiny

to the exercise of royal prerogative powers has also been made by the
courts of other Commonwealth countries. The House of Lords considered
whether Prise Ministerhargaret Thatcher was obliged to act fairly
before forbidding the staff at a top secret -military facility from
belonging to trade unions.173 Siailarly, the Supreme Court of India

held that a Presidential Ordinance issued for national security

174Su ra, note 26.
175 era ion ism tle v. the een [1985] 1 S.C.R. 441.
[Hereinafter Dismantle]. ‘
175396 U.S. 19.

177M. Rankin and A.J. Ilolan, “A New Basis for Screening Constitu-
tional Questions Under the Charter of Rights and Freedoms: Pre-Judging
the Evidence?” Can. B. ev. LXVI:1 (June 1987), pp. 365-389. A

173Council of Civil Service Unions v. Minister for the Civil

[1935] A.C. 374.



purposes is “fortunately and unquestionably” subject to judicial
review.179 In Australia, the High Court ruled that the Governor in

Council could not grant or refuse, on a wholesale basis, applications

“ by individuals to practice as insurers; instead the court required

decisions to be based on the circumstances of each case and overruled
the general policy.13“ Although, the Supreme Court of Canada answered
the s. 7 claim arising out of Dismantle in the negative, the very
decision to render judgement on the case will have important

ramifications on Canadian law.131

I The Morgentaler judgement is the court’s most activist ruling to

date.132 The majority decided that s. 251 of the Criminal Code was
‘ultra vires’ the Parliament of Canada. Where once, “the tacit
recognition” of legislative supremacy may have impelled “Canadian
judges to exercise judicial self-restraint,”133 in light of the
Morgentaler judgement, this appears to no longer be the case. In fact,
the majority seems to have abandoned the “cautious activism” of its
earlier decisions, in favour of a holder approach.134 The Supreae
Court’s decision has created a legal vacuum that Parliament, to this

day, has been hesitant to define.

179A. K. Roy v. Union of India [1982] A.I.R., Sup. Ct. 710.
13°FAI Insurances Ltd. v. Winneke [1982] 41 Aust. L.R. I (H.C. Aust.).

131For a discussion of the larger significance of the Operation
Dismantle case on Canadian law, see J.R. Mallory, “Beyond ‘Manner and
Form’: Reading Between the Lines in Operation Dismantle Inc. v. R.,”
McGill L.J. XXXI (1986), pp. 480-495. a ”

lazflorgentaler, Smoling and Scott v. The Qpeen (1988), 44 D.LfR.
385 (S.C.C.) [hereinafter Morgentaler].

133J.R. Mallory, The Structure of Canadian Government (Toronto:
Gage Publishing, 1984), p. 362.
13‘For details on previous ‘cautious activism’ see Wayne Mackay

and Richard W. Bauman, “The Supreme Court of Canada: Reform
Implications for an Emerging National Institution,” in Beckton and

Mackay, The Courts and the Charter, supra, note 27, p. 42.

“–…: C”

“”‘uv¢‘m ~——g—_,


In a separate concurring decision, Madam Justice Wilson held that
women have the right to reproductive freedom. The puisne justice
connected a substantive reading of s. 7 with the guarantee of
conscience in s. 2(a) of the Charter. She explained that:

the decision whether or not to terminate a pregnancy is
essentially a moral decision, a matter of conscience. I do
not think there can be any dispute about that. The question
is: whose conscience? Is the conscience of the woman to be
paramount or the conscience of the state? I believe … that
in a free and democratic society it must be the conscience of

the individual.155
In a decision which has been said to follow the American model of

substantive nonoriginalism,135 Wilson J found that the impugned
abortion legislation interfered not only with a women’s liberty, but
with her right to “personal autonomy in decision-making” and to her
“physical ‘person’.” She explains that under the criminal code

abortion provision, a woman:

is truly being treated as a means – a means to an end which
she does not desire but over which she has no control. She.
is the passive recipient of a decision made by others as to
whether her body is to be used to nurture a new life. Can
there be anything that comports less with human dignity and
self-respect? How can a woman in this position have any
sense of security with respect to her person? I believe that
s. 251 of the Criminal Code deprives the pregnant woman of
her right to security of the person as well as her rightwto

By recognizing the importance of such individual respect, Madam Justice
Wilson also probes into the political theory behind the existence of
the Qhpgpg_.i While she recognizes that the Charter allows wide
discretion for legitimate government action, she underscores the limits

which the document is meant to enforce. Articulating a balanced theory

of the self, Wilson J. reasons,

195Mor entaler, supra, note 182, at p. 494.

‘°5Substantive nonoriginalism is the most activist form of

judicial review. (Cf. Gordon Crann, “Morgentaler and American Theories
of Judicial Review: the oe v. Wade Debate in Canadian Disguise?”

U.T.L.Rev. (Spring 1989), pp. 518-521.
l87!Q£g§flL§l§£, suprp, note 182, at p. 492.

J V’U—‘ -—uvg u vr* for? V vw-y-

-w-..‘.p- .4.



an individual is not a totally independent entity
disconnected from the society in which he or she lives.
Neither, however, is the individual a mere cog in an
impersonal machine in which his or her values, goals and
aspirations are subordinated to those of the collectivity.
The individual is a bit of both.

Despite Chief Justice Dickson’s majority opinion, and other
concurring judgments, Mclntyre and La Forest JJ. seemed hardly
impressed with Mada: Justice Wilson’s philosophical position. Echoing
the ideas of American Justices Byron White and William Rehnquist in 12_9_e_,

v. Wade,195 McIntyre J . declared for the dissenters in the Morgentaler

judgement that,

the proposition that women enjoy a constitutional right to
have an abortion is devoid of support in the language of s. 7
of the Charter or any other section… a t
It cannot be said that the history, traditions and

underlying philosophies of our society would support the
proposition that a right to abortion could be implied in the

The dissenting opinion warns of the tendency of courts to create new
rights through excessive activisn.19° In an ardent defence of judicial

restraint his Lordship explained:

Difficult choices nust be made and thepersonal views of
judges will unavoidably be engaged from time to time. The
decisions made by judges, however, and the interpretations
that they advance or accept must be plausibly inferable from
something in the Charter. It is not for the courts to
manufacture a constitutional right out of whole cloth.1“

The reasons of McIntyre J . and La Forest J. may incite one to recall

H.L.A. Hart’s comment on Roe v. Wade. Prof. Hart states that in

133White J. , with Rehnquist dissenting, in Roe v. Hgge [1973] 410
U.S. 113, at 221-222: l

I find nothing in the language or history of the constitution to
support the Court’s judgement. The Court sinply fashions and
announces a new constitutional right for pregnant mothers and,
with scarcely any reason or authority for its action, invests that
right with sufficient substance to override most existing state
abortion statutes.

139Supra, note 132, at pp. 459-470.

19°See Griswold v. Connecticut [1965] 381 U.S. 479, which read the

i right to privacy in the “penumbra” of the American Constitution.

191Ibi§., at p. 467.


Loghggr v. u.s.“? Justice Oliver Wendell Holmes had justly “…protested
against the laissez-fairs decisions of his day that the Fourteenth
Amendment, had not enacted Herbert Spencer’s Sgcial Sgtigs and its
laissez-faire philosophy.” However, if Mr. Justice Holmes had “survived
intothe modern period,” adds H.L.A. Hart, “he might have protested that
the Fourteenth Amendment had not enacted John Stuart Mill’s Q3;
L,ibert:g.”193 J

The Morgentaler decision has been one of the most controversial
the Supreme Court has thus far handed down.”“ Shortly after the
decision, the Canadian Abortion Rights Action League (CARL), the
Campaign Life Coalition, and numerous other pro-choice and pro–life
groups began to lobby for government action. In the House of Commons,
Justice Minister Ray Hnatyshyn noted that the Morgentaler decision
“brings to our attention the new realities of the Charter of Rights and
Freedoms of our country, and the role of’ the Supreme Court of Canada in
defining the limitations and the abilities of legislatures at all
levels of governnent to deal with important issues.”195

Yet, during the Charter debate‘ a few years earlier, Prime Minister
Trudeau had risen in the House to argue that thecharter would not

affect the abortion law:

In other words, the charter does not say whether abortion
will be easier or more difficult to practice in the future.
The charter is absolutely neutral on this .matter.195

P.M. Trudeau added, that the courts would not be allowed to determine

should a judge conclude that on the contrary, the charter
does, to a certain extent, affect certain provisions of the
Criminal Code, under the override clause we reserve the right
to say: Notwithstanding this decision, notwithstanding the

muses) 193 u.s. 45.

, 1”H.L.A. Hart, ”Through English Eyes,” Essays in Jurisprudence
and Ehilgsgphy (Oxford: Clarendon Press, 1983), p. 127 ‘(footnote omitted).

“With the possible exceptioncof Resolution to Amend the
Q2_r;.£_s1:_i_t_11_t_i_9_1:_L_i2a-_ [1981] 1 8-0.8. 75.

19-“Cited by Gordon Crann, supra, note 186, p. 499.
1″Canada, /House of Commons Debates, 32nd Parliament. November

27, 1981, p. 13 433.

1*!’ u v-,-vu

‘ Y” “” K”Q” 1′ 11 §1 4-gw -—-‘:3’ -g ¢s-;- gr‘-g o–q .‘Y‘.r.


charter of rights as interpreted by this judge, the House
legislates in such and such a manner on the abortion

, Nevertheless, within a week of the judgement, the federal
government announced that the override section of the Charter would not
be used to restore the invalidated provision of the Criminal Code.193
Nor has a new abortion law been forthcoming for over twenty months
after the decision. Despite Ottawa’s inactivity, several provinces
provided their own response to the Morgentaler verdict. Shortly there-
after, the British Columbia Civil Liberties Association launched a
legal challenge to the provincial government’s decision to eliminate
public financing of abortions.199

The behaviour of some of the provinces recalls the U.S. federal
government’s struggle for state compliance with £32 Brown v. Board of
Education decision.3°° In the Morgentaler case, however, the Canadian
Supreme Court has offered no direct remedy to pregnant women desiring
an abortion with the exception of the invalidation of the statute
making such behaviour criminal. (

The Supreme Court also agreed to hear Joseph Borowski’s challenge
of a Saskatchewmn Court of Appeal ruling which held that abortions do
not violate the right to life, liberty and security of the fetus. Mr.
Borowski contended that abortions violate the guarantees of s. 7 for
the unborn. He attempted to obtain judicial remedy for those opposed

to abortion and‘who see it as an infringement of the rights of the


1971bi .

193 he be and Mail (January 30, 1988).

’-“The globe and Mail (February 19, 1988), p. Alv-2.
2°°[1954] 347 U.S. 483.

2“1Mr. Borowski was obviously not pleased with the first Charter
decision on abortion. “They have just canonized anarchy and law-
breaking,” said Mr. Borowski upon learning of the Mgrgentaler judgement
which in his opinion granted “licence to any doctor in the country to

set up a corner butcher shop.” See The globe and Mail (January 29,
pa A1″”2o .


An intense debate has been waged in the academic community as to
whether pre-natal “rights” can practically be recognized. Morris
Shumiatcher contends that the issue of fetal rights in _B_9rowski is the
sale as that which arose in the Henrietta Edwards Persons case.3°3 For
Shuniatcher the rights of the fetus can not be denied. Similarly,

according to George Grant,

…the justice of a society is well defined in terms of how
it treats the weak. And there is nothing human which is
weaker than the foetus.3°3

However, Catherine Tolton has” rightly underscored the difficulties with
granting legal standing to the products of conception. Recognizing
“rights” for the conceptus sets off a wide range of complex social and
legal questions:

Would intentional disconnection of the power supply to a
freezer full of frozen embryos be tantamount to mass lurder?
Could a pregnant woman with cancer ‘be denied cheaotherapy
treatments because the treatments would harm the econceptus?
Would the government be obliged to start paying “baby
bonuses” from the time of conception.?3°4

On the other hand, Borowskils factun asserted that “the treatment
accorded the weak, the disabled, the very old and the very young
reflects the compassion and the sense of obligation of a society.”3°5
Nonetheless, the difficulty of the Court’s deliberation was amplified
by the Women’s Legal Education and Action Fund (LEAF) which, as an
intervenor in the Borowski case, issued a factuu which reminded the
Court that a foetus is not an entirely separate being. a Ms. Tolton
summarizes the factun:

LEAF argues that the emphasis on science advocated by
Borowski treats the pregnant woman as a container for the
foetus -— as an unconnected, unconcerned, and invisible life

‘WM. Shumiatcher “1′ Set Before You Life and Death (Abortion –

Borowski and the Constitution),” University of Western Ontario Law
Journal xx1v:2 (1937). 1-25. 1

“36. Grant. Iechnolggx and Justice (Toronto: House of Anasi Press
Ltd., 1986), p. 130.

“”0. Tolton, “Medicolegal Implications of Constitutional Status
for the Unborn: ‘Ambulatory Chalices’ or ‘Priorities and A.-3pirations’,”

ll;L__l_’g§_.__L_.____3gy__._ XLVII:1 (Fall 1988), p. 3.
po 20



support system. The foetus is portrayed as the autonomous
“space-hero” and the pregnant woman as the “empty space” in
which it f1oats.2P5

Deciding between these two controversial positions was not to be a
facile nor comfortable task for the Court. However, since the
provisions of the criminal code dealing with abortion had already been
invalidated, Mr. Justice John Sopinka, writing for the majority,
declared that the Borowski challenge was moot.2°7 The appeal failed to
present a “live controversy” or concrete dispute. “The court must be
sensitive to its role as the adjudicative branch in our political
framework,” wrote Sopinka J., “pronouncing judgments in the absence of
a dispute affecting the rights of the parties may be viewed as
intruding into the role of the legislative branch.”2°3 As one might
expect, this did not put the matter to rest.

Four months after the Borowski decision, fetal rights were at
issue in the courts once again. eTwo former boyfriends of pregnant
women managed to obtain lower court injunctions to prevent abortion.
In the case of Barbara Dodd, the injunction was quickly lifted by a
higher Ontario court. However, Chantal Daigle was not as fortunate.
The Quebec Court of Appeal upheld an injunction, obtained on the
request of Jean~Guy Tremblay, restricting her freedom. with
unprecedented speed, reflecting the acknowledgment of its new-found
political responsibilities, the Supreme Court of Canada prepared itself
to hear Daigle’s appeal just one week after the ruling of the Quebec
high court. iOn August 8, 1989, the same day it heard the arguments,
the Court issued a unanimous decision from the bench: The injunction
should be quashed and should never have been issued in the first place.
However, this point seemed practically (though certainly not
politically or legally) moot since the pregnant woman had traveled to

the U.S. to terminate her pregnancy the day before the case was

2°51bid., p. 2, n. 14.

2°7Borowski v. Attorney-General of Canada (1989), 57 D.L.R. 231
(S.C.C.). One gets the feeling that the Court was relieved.

2″3Ibid., at p. 233.


heard.3°9 A3 in the earlier French—only commercial sign controversy,.

p the opposing sides in the abortion debate engaged in widespread

demonstrations. The court actions sparked a controversy which placed

the issue on the front {ages of all the nation’s daily newspapers and

encouraged great discussion among citizens. At the time of writing,

“the reasons for the Court’s unanimous opinion are not yet available,

but one can be sure that the divided federal government caucus will
seek guidance from the Court’s written judgement. Once again we see
the Supreme Court of Canada at the centre of Canadian political
discussion. Like the £gtrig§ion_geference,Z1° the Sunday Closing
cases,311 and the florgentaler decisions before it,213 the Charter
thrust the Supreme Court into high-profile political action in Daigle
v. Tremblay. The Daigle case once again demonstrates that the Court’s»
activities often awaken sensitive issues that need governmental

attention, but which if left to their ownrdevices, politicians would

otherwise ignore.


Despite its activism in other areas, the Supreme Court has come
under extensive criticism for its narrow interpretation of one social,
political, and historical reality which it has not set under the
Charter. Numerous academic observers have faulted the court for its

non-recognition of fundamental labour rights.213

3°9Kirk Makin and Susan Delacourt, “Court lifts injunction after
Daigle abortion” The Globefignd Mail (9 August 1989), p. A1.

3‘°Resolution to Amend the Constitution. Re. [1981] 1 S.C.R. 75.

211Big M Drug Magt, surge, note 31 and Edwards Books and Art,
ra, note 33.

213Su’ra, note 182.

313See, for instance, oily Harmer, “The Right to Strike: Charter
Implications and Interpretations,” U.T. Ego. L. Rev. XLVII:2 (Spring
1989), pp. 420~464; Michael MacNeil, “Courts and Liberal Ideology: An
Analysis of the Application of the Charter to Some Labour Law Issues,”

flcGill L.d. XXXIV:1 (January 1989), pp. 86-118; Allan Hutchison and
Andrew Petter, “Private Rights/ Public Wrongs: The Liberal Lie of the

“a~‘£’=’1J’;.””.;=(:f’-‘;’V- I -v-5»-w ‘¢”a

VG‘?!-3″!-‘V Vow-rpqj(‘v*\v~;. . ‘-


The Dolphin Delivery ruling was the Court’s first decision on
labour under the Charter.31‘ The Court held that trade union picketing
is protected under freedom of expression guarantees. However, it
simultaneously ruled that a restriction of secondary picketing, through
court injunction, is a reasonable and justifiable limit under s. 1 of
the Charter. By recognizing a constitutional right to picket, the
Supreme Court of Canada went further than the American Supreme Court
which denies constitutional protection for picketing which it views as
amounting to conduct. Furthermore, the Dolphin Delivery ruling
resolved a controversial question by declaring that the Charter does
not apply to litigation between ‘purely’ private parties with no
connection to legislation or other government action.

Prof. Dale Gibson had argued that if the Charter did not apply to
the private sector, the right of private property would be placed above
fundamental rights and freedoms.215 Yet, in Blainey v. Ontario Hockey
Association, Mr. Justice Charles Dubin ruled that the Charter was not
applicable to private action.215 This sentiment was affirmed in
Dolphin Delivery by Mclntyre J. David Beatty has consequently referred
to the Dolphin Delivery decision as ‘highly elitist’ and ‘profoundly

lantidemocratic.’217 According to Alan Hutchison and Andrew Petter, the

ruling “let the political cat out of the constitutional bag and into

the critical light.”213 Edward Belobaba described Dolphin Delivery as

Charter,” U.T.L.J. XXXVIII (1988), pp..278-297; David Beatty and Steven
Kennett, “Striking Back: Fighting Words, Social Protest and Political
Participation in Free and Democratic Societies,” Can. B. Rev. LXVII:4

(1988), pp. 573~621.

314Retail, Wholesale, Department Store Union, Local 580 v. Dolphin
Delivery Ltd. [1986] 2 S.C.R. 573. [Hereinafter Dolphin Delivery, and R.W.D.S.U.]

215Law of the Charter, supra, note 99.

315[1986] 54 O.R. (2d) 513 (C.A.), at p. 521. Blainey is also a
very significant decision in that it illustrates that provincial human
rights legislation is subject to the Charter.

317David Beatty, “Constitutional Conceits: The Coercive Authority
of the Courts,” U.T.L.J. XXXVII (1987), pp. 182-183.

313A. Hutchison and A. Petter, “Private Rightsl Public
Wrongs: The Liberal Lie of the Charter,” University of Toronto L.J.

XXXVIII (1988) 278, at p. 280.


“one step forward and two steps back”. Mr. Belobaha says that if the
Charter applies strictly to governmental action “what about the courts?
What about the common law? The Supreme Court of Canada can and should
do better.”319 Prof. Beatty has gone as far as to call for the
overturning of the ruling.33° one may hope, however, that the Qglphin
Delivery decision does not prove to be the Waterloo of wider
application for the Qharte .


On April 9, 1987, the Supreme Court issued three decisions as to
whether freedom of association guarantees workers the right to
strike.231 In the Alberta Labour Reference case, the Court upheld
legislation which provides for interest arbitration in place of the
right to strike for public eaployees.333 The majority decision,
written by Mr. Justice Le Dain and joined by Justices Beets and La
Forest, reasoned that the guarantee of freedom of association in s. 2(d)
of the Charter does not include a guarantee of the right to bargain
collectively and to strike. In a strongly worded separate opinion, Mr.

Justice McIntyre held that:

People, by merely combining together, cannot create an entity
which has greater constitutional rights and freedoms than
they, as individuals, possess. The group can exercise only
the constitutional rights of its members on behalf of those
members … Collective bargaining isja group concern, a group
activity, but the group can exercise only the constitutional
rights of its individual members on behalf of those aembers.

_ 31’See E.P. Belobaba, “The Charter of Rights and Private
Litigation: The Dilemma of Qglphin Delivery,” in N.R. Finkelstein and

8.M. Rogers eds., Charter Issues in Civil Cases (Toronto: Carswell,

1988), p. 46. .
22°§gp;§, note 217, p. 198.

331Reference Re Public Service Employee fielations Act (1987), 33

D.L.R. (4th) 161 [hereinafter Alberta Labour Reference]; Public Servige

Alliance of Canada v. The Queen in Right of Canada (1987), 38 D.L.R.
(4th) 249 [hereinafter Epblic Service Alliance]; Retail, Hholesale ggd

Dgpagtment Store Union, Local 544, 496, 635, 955 v. Saskatchewan

(1987), 38 D.L.R. (4th) 277 [hereinafter Saskatchewgngflairy Workers].

2==;g;g., Alberta Labour geferepge.

‘ 4 ’70‘-



If the right asserted is not found in the Charter for the
individual, it cannot be implied for the group Ierely by the
fact of arsociation. It follows as well that the rights of
the individual uenbers of the group cannot be enlarged Ierely
by the fact of association.333

The former nritish Colunbia judge went on to explain that since the
statutory right to strike in Canada, is “of relatively recent
vintageb”224 It could not be said, in his opinion, that it has
achieved a status as a fundamental right which should be inplied in the
absence of specific reference in the Chartgr.335 Yet, by drawing on
the proceedings leading up to the inclusion of freedom of association
in the Charter, David Beatty and Steven Kennett explain that the reason
no specific Charter reference exists to recognize the freedom of
workers to bargain collectively is that those drafting the document

feared that its specific recognition night be interpreted to diminish
the right of association for non-labour groups.225 Mclntyre J.’s
assumption may therefore be erroneous. The judge night have done well
to recall Enaett Hall’s reminder that individual rights are “illusory”
if not accompanied by social rights.337 The theoretical difficulties
with the position taken by Mclntyre J. have been pointed out by a
number of observers. According to Michael MacNeil, “the idea that each

person is and can be in complete control of his or her individual

223IbiQ., at p. 220.
22‘Ibid., at p. 232.

3251big.,.McIntyre J. reasoned that the right to strike:
…is truly a product of this century and, in its nodern
form, is in reality the product of the latter half of this
century. It cannot be said that it has becoue so such a part
of our social and historical traditions that it has acquired
the status of an ilmutable, fundamental right, firmly
embedded in our traditions, our political and social
philosophy. There is then no basis … for implying a
constitutional right to strike. D

323D. Beatty and S. Kennett, supra, note 213, p. 596. Drawing on.
the remarks of R. Kaplan, Acting Minister of Justice, in Minutes of
Proceedings and Evidence of the Special Committee of the Senate and a
House of Comlons on the Constitution of Canada, issue # 43, pp. 68~79,
Jan. 22, 1981.

327For_Hall’s philosophy see Dennis Gruending, Emmett flail:
Establishment Radical (Toronto: Macmillan of Canada, 1985), p. 169.


destiny isaa fabrication that does not correlate with the realities of

complex relationships in a modern society.”333
The Chief Justice, with Mada: Justice Wilson concurring, dissented

from the holding in the Alberta Labour Referegc . Chief Justice
Dickson emphasised that section 2(d) of the Charter provides an
“explicit and independent guarantee” of freedom of association, placing
it in marked contrast to the First Amendment of the U.S. Constitution,
which makes no reference to association.229 He also pointed to the
U.N. Covenants on Econogic. Social‘ and Cultural Ri hts, and on Civil
d Political Ri hts, which protect the right of unions to strike and

function freely, and IL0 Convention No. 87: Concerning Freedom of

fggsociation, which ILO bodies have interpreted as to include collective

bargaining rights.23° Dickson C.J. indicated that since Canada was a
party to these international human rights documents, it was cognizant
of the importance of freedom of association to trade unionist, and is
under obligation to protect the associational freedoms of workers
within Canada, subject to reasonable liIits.231 The Chief Justice,
found the restrictions unjustifiable under s. 1 because the political
objective was not of sufficient importance to justify the legislative

prohibition of the freedom to strike.332

In the gaskatchewan Dairy Workers judgeIent,233 the majority
upheld the provincial Legislature’s Dairy Workers (Maintenance

Qperation) Act which temporarily prohibited Saskatchewan’s dairy
euployees from striking and the dairies from looking the employees out.

However, in contrast to the Alberta Labour Reference case, the Chief
Justice found the act’s restriction justified under s. 1 and ruled that

the criteria of proportionality met with the compulsory arbitration

zzagmmga, note 213.

329Alberta Lahgpr Reference, supra, note 221, at p. 181.

23°1§flQ., pp. 187-191. ‘
231,I_b__i_§., p. 192.

232;_t_:_:g., p. 212.

’3?§ppgg, note 221.




iacheme enacted by the legislation.23‘ In the sole dissenting opinion,
Wilson J. argued that the potential danage and inconvenience caused in
the absence of the legislation could not constitute a “pressing and
substantial concern” (as established in Qakgg) to justify governnent
intervention. In dissent, the astute justice reasoned that:

To determine under s. 1 of the Charter when that point has
been reached, the government lust satisfy the court that as a
ainimum the damage to the dairy industry as a consequence of
the work stoppage would be considerably greater than that
which would flow in the ordinary course of things from a work
stoppage of reasonable duration. Industry and the public
accept a certain amount of damage and inconvenience as the
price of maintaining free negotiation in the work place.335

Justices Wilson and Dickson are the only Iembers of the court tot
recognize the right to strike under the Charts . For this reason, none
of their brethren considered the s. 1 test in Saskatchewan Dairy T
florkers. C
In Public Service Alliance,335 the third labour decision in the

trilogy handed down the same day, the majority ruled that the federal
governnent’s Public Sector Compensation Restrain Apt, establishing the
principle of six and five per cent inflation restraint, was not
inconsistent with the Charter._ However, in partial dissent, the Chief
Justice stated that while the objective of reducing inflation was, at
the time of the act’s passage, of sufficient iaportance for the purpose
of s. 1 of the Charter, not all of the means chosen to achieve the
objective were “reasonable and demonstrably justified.” Dickson C.J.
explained that the removal of the right to strike over non~
compensatory issues and the right to sublit such disputes to binding
arbitration, was not a justifiable infringement of the freedom of

association and bore no apparent connection to the objectives of an

==41bid., at p. 293;
235IQid., at p. 300.
335Supra, note 221.


inflation restraint programme.237 For Wilson J., dissenting in Public
Service Alliance, no part of the act could be saved by s. 1.233
In its “right—to-strike” decisions, the Court’s majority failed to

recognize labour’s most essential right and thereby failed to provide
judicial remedy for restrictive legislative action. The Supreme
Court’s majority holding in the Alberta Labour Referepce clearly
preferred a liberal theory of political society over a collectivist
vision.339i Had the other justices sided with Dickson C.J. they would
have recognized what Lily Harmer refers to as “the social nature of
human beings, and the need to act in concert as a primary condition of
community life, which is a large and necessary part of our modern
society.”24° Yet, the prevailing opinion of the Court emphasised the
central tenets of liberalism. Prof. MacNeil has highlighted the

conceptual difficulties with the majority position:

By failing to acknowledge community in tne process of the
interpretation of rights, courts may create boundaries
between individuals, groups and society as a whole which do
not reflect social reality … Courts should not proceed on
the basis of theoretical assumptions about the primacy of the
autonomous individual.. This is not to deny that rights have
a very important role to play in protecting and promoting
individual values. It is necessary, however, to recognize
that groups and various forms of community are also important
to the individual, and that rights which protect and promote
communal forms of action are equally important and compatible
with our constitutional history.241

, In addition to sparking challenging philosophical discussions, the
labour decisions ignited political controversy. The Canadian Labour

Congress criticized the judgments for failing to follow the lead of the
International Labour Organization. The ILO has recognized the right to
negotiate and the right to strike as integral freedoms under freedom of

237Ibid., at pp. 258~286.-
at ppo

a 3390n the theoretical assumptions in the labour judgments see
articles by Lily Harmer and Michael MacNeil, supra, note 213.

3‘°L. Harmer, supra, note 213, p. 424.
341Su ra, note 213, p. 92.


“* 1 association in the U.N. Charter.342 The judgments appear to intensify
the fire of Michael Mandel’s ideological assault on the existence of
the Charter.343 The sooner a majority of the Supreme Court begins to
back away from the holding in the right~toéstrike trilogy, the sooner
sany of the Charter’s opponents will be deprived of piercing artillery.

-tr‘ r- v-:~.. – —

n oowcw on
The judicial restraint and theoretical inflexibility displayed by
the majority in the Court’s labour decisions stands in contrast to the

bold trend of the last seven years. The Court has derived considerable

‘“‘\ “\’-¥’Y“”””‘ “““4′ V \1t”vI’-wag.-.m>um –‘pg.-—~\

V authority from the discussed provisions of a vague and seemingly dull
2 document.

Noting its uninspiring “lawyers language” a distinguished observer
remarked that the Charter “lacks the ringing eloquence that came so
easily to our forebears of the eighteenth century.”3‘* Despite the
textual shortcomings, the court’s interpretation of the Constitution
Act, 1982 has brought judicial relief to those who could have expected

, little if anything from the traditional political process.

‘ While parliamentarians avoided the issue for years, the Supreme
Court of Canada invalidated the criminal restriction on abortion in
1988. In the interest of avoiding a controversial issue, the federal
government would have done nothing at the time to protect the rights of
pregnant women from being shackled by the criminal code. The Supreme
Court, however, accepted the initiative in Morgentaler and sent a clear

directive to Parliament to get on with the process of legislating.

‘-1 V‘: ‘

us rv ~ 1»-a ..~…—. ., gr. – —-p um,-v.;,—.r rq rvqr-.« r“.._‘. x ,-

When elected representative again demonstrated themselves irresolute
and evasive on the subject of abortion, the judicial process sent them

» another important missive via the paigle controversy. The Supreme
Court provided a legal and political avenue for Susan Nelles to


243Le Devoir (April 13, 1987), p. 2.

3‘3Legalization of Politics in Canada, supra, note 4, ff.

4‘ 344J.R. Mallory, “The Continuing Evolution of Canadian
Constitutionalism,” in Constitutionalism Citizenshi and Societ in
Canada, su , note 5, p. 94.



completely clear her name and seek just compensation for her unjust
persecution. State authorities, on the other hand, were prepared to
let the issue fade away.

Shortly after the Charter came into effect, Prof. Tarnopolsky (as
he then was) tried to ease the fear of the docunent’s opponents by
explaining that continuing in its “cautious tradition,” the judiciary
would not supplant legislators as policyenakers in the human rights
field.255 Yet, seven years later the cautious tradition has given way
to hold interpretation. Judicial intervention has properly exerted
pressure on the law—makers to consider the constitutional implicationsi
of their enactments and the arbitrariness which can result from their,
hesitancy to fulfill their legislative duties.2“ The Supreme Court
has begun to out the boulder of inactivity behind which many
politicians have hidden. Quebec’s Premier, Robert Bourassa, was forced
to deal with his campaign promise to preserve the rights of anglophones
within his province. Although, he choose to dodge his own word, the
Supreme Court made sure that he was not allowed to do so without public

recognition that fundamental rights and freedoms would be circumvented

(in the process.

As a result of the Constituti n Act 1982, Professors James Snell
and Frederick Vaughan have noticed that the Supreme Court has achieved
“a degree of institutional independence and a broad mandate unequalled
by any other judicial body in the western world.”247 The consensus

seems to be international. Dr. Kenneth Pye, of Duke University Law

345Walter Tarnopolsky, “The Constitution and Human Rights,” in K.
Banting and R. Sineon, eds., And No Que Cheered (Toronto: Methuen,
1983), p. 277. ,

2‘°0n the latter point, consider the legal, social, and emotional

difficulties which could have been avoided had a consistent abortion
policy been in place to prevent the destructive impact of injunctions

during the summer of 1989.
2‘7J.G. Snell and F. Vaughan, ihg Sunrggg Court of Canada:

flistory of the Institution, (Toronto: U. of T. Press, 1985), p. 253.

The author’s largely attribute the Court’s new stature to the work of

the late Bora Laskin, and Chief Justice Brian Dickson whose judgments

while a puisne justice they describe as “meticulously researched,
cogently reasoned and written with a clarity and economy of style
rarely found in the gu rene Court Re orts,” at p. 243.


School, has concluded that Canadians are trying to achieve in a few

éyears what it took decades to do in the United States. “The range of

cases is quite extraordinary,” explained Professor Pye, “The Suprene
Court’s willingness to entertain litigation now stands in contrast to
the American courts.”34§ (For Susan Nelles, Henry Morgentaler, David
Edwin Oakes, Yvan Vaillancourt, and for countless others, the Supreme
Court’s “willingness to entertain litigation” was the only opportunity
to challenge the will of the legislature with any hope of remedy.
Where the political arm of government failed to reach, the Supreme
Court of Canada extended the life jacket. F.R. Scott would have

undoubtedly approved.

243Professor Pye was quoted in The Globe and flail (April 11,
pa A7o ‘ V

0 ts ive

Beyond Maturity

The Constitution of a country grows with the country, as the
roots and branches of a tree reach out for greater sunlight

and soil.

As an institution the Supreme Court has set significant challenges

during the past two decades. Recently, Peter Russell declared that the

adoption of the Charter “put the Supreue Court an the political Iap»for

the ordinary citizen,” and that as a result, the Court has “reached
full Iaturity.”2 Since finding its place on the landscape of Canadian
politics, aany questions have been raised about the judges of the
powerful Court. The proposed Meech Lake Accord has also encouraged
important discussion about the Supreme Court’s proper constitutional
role. In addition, the debate over the notwithstanding clause has been
rekindled by recent political events and the reopening of the
constitutional negotiating process. The previous chapter discussed the
origins of the Court’s structural and political Iaturity, this chapter

will consider the prospects for taking the Supreae Court beyond its

. present responsibilities.

Ilportant changes were made to the Court during the 1970’s. The
bilingual character of the institution was reaffirned by beginning the
practice of printing the Court’s official reports in both English and
French. Legal secretaries and law clerks were introduced to facilitate
the justice’s research and in 1975, the Court was finally given control
of its own docket and allowed sole discretion over lost of the cases it
chose to hear.3 The advent of the Charter significantly increased the

‘The Canadian Constitution and Human Rights (Toronto: Canadian
Broadcasting Corporation, 1959), p. 1.

‘Peter Russell, “Modernizing the Supreme Court,” in Gérald-A.
Beaudoin, ed., The Supreme Court of Canada (Mbntreal: Les Editions Yvon
Blais, 1986), p. 194. R ‘

3Peter Russell, “The Judicial Process,” in P.W. Fox, Politics:
Canada 5th ed. (Montreal: McGraw-Hill Ryerson, 1982).


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Supreme Court’s workload. While applications for leave to appeal
increased steadily from 158 in 1970-71 to 431 in 1980-81, they exploded
to 501 during the first year of the Charte;’s enactment.‘ The feeling
of overload continues to be widespread. At its annual meeting in
August 1987, the Canadian Bar Association unanimously passed a
resolution calling for a new level of court to hear criminal appeals.

A C.B.A. study group concluded that the Supreme Court “is not now able
to hear all the cases that it ought to hear and … the court takes too

long to decide the cases that it does hear.”5

Higher court judges in Canada have largely avoided political
controversy. Yet, a few exceptions come to mind. In 1981, Mr. Justice
Thomas Berger of the British Columbia Supreme Court (as he then was)

a publicly criticized the Trudeau government’s failure to include

aboriginal rights in the Charteg, by writing an article in a national

Prime Minister Trudeau did not take Thomas Berger’s comments very
kindly. For its part, the Canadian Judicial Council rebuked Justice
Berger. In a public speech, Bora Laskin C.J.C. went even farther by
suggesting that “a judge who feels so strongly on political issues that
he must speak out is best advised to resign from the bench.”5. Shortly
after the Chief Justice’s comments, Thomas Berger resigned. It is
interesting to note, however, that this was not the first time that a
sitting judge had commented on political matters. a

Under the Canadian tradition of appointing leading judges to head
royal commissions of inquiry, several members of the judiciary have

11 “”TY‘I”8 xi—2 ,….._, …,_ _”

‘Peter Russell, “The First Three Years in Charterland,” XXVIII:3

(1985) C.P,A, 370. See also 8. I Bushnell, “Leave to Appeal
Applications to the Supreme Court of Canada: A Matter of National
Importance,” u . Ct. L. Rev. III (1982), p. 479.

i5Globe and Mail (October 7, 1987), p. A5.

“Canadian Bar Association, Annual Meeting, Toronto (4 September
1982). Quoted by Robert Martin, infra note 15, p. 810.


been required to make political statements as a result of their extra-
judicial function. Most recently, Mr. Justice Charles Dubin has led an
inquiry into drug abuse in Canadian amateur sport. The inquiry,
triggered by the revocation of sprinter Ben Johnson’s gold medal at the
1988 Seoul Olympics, has made Mr. Justice Dubin a frequently quoted
high profile political character. In 1964, Supreme Court Justice,
Emmett Hall, chaired the Royal Commission on Health Services which
advised the creation of a national health care system. Mr. Justice
Hall publicly defended the Commissions recommendations, as have the
chairpersons of other royal commissions. However, by urging the
adoption of his Health Services Report, Emmett Hall raised the ire of
Minister Judy LeMarsh.
It was perhaps for this reason that a retired Emmett Hall was one

of the few people who offered to publicly defend Berger’s comments in
1982.7 There have been other cases of judicial opinions on political
issues rendered outside the courts. Mr. Justice Samuel Freedman
publicly supported the invocation of the War Measures Act, while Mr.
Justice Donald Thorson actively supported nuclear disarmament.3 More

recently, Chief Justice Brian Dickson has openly criticised both the

federal government and the Government of British Columbia for under~

funding universities.9 Unlike the Berger case, the comments of these
judges were not met with harsh rebuke or condemnation.1°

We need to develop a consistent policy. Robert Fulford has said
that Mr. Berger’s greatest crime seems to have been having the gumption

7Mr. Berger thanked Emmett Hall, respectfully declined his help,
and resigned as a result of Mr. Justice Laskin’s speech. See Dennis

Gruending, Emmett Hall: Establishment Radical (Toronto: Macmillan,

pa ‘
‘Robert Fulford, “Disorder in the Court,” Saturday Night Magazine
(September 1982).

‘In an address delivered at convocation at the University of
British Columbia, 30 May 1986. Quoted by Robert Martin, infra, note
15, p. 810.

1°A newspaper editorial seems to have been the only reproach in
the last incident. “A Judge Speaks Out,” globe and Mail (3 June 1986),
p. 6. See infra, note 15. 0


to sound like “the young Trudeau.”11 It is disturbing to believe that
judges are at liberty to speak freely on matters of pressing public
importance only so long as they do not bruise the ego of the Prime
Minister. The Canadian Judicial Council needs to establish a more
uniform standard for comment. Judges are citizens and serve best by
being allowed to speak at their own discretion when not exercising
their adjudicative responsibilities. Supreme Court justices are along
the most valuable members of the polity; if matters are serious enough
to make them feel their comments unavoidable, their sapience is best
shared with Canadian society.
Under the Charter, judges with intellectual depth are required.

As the use of historical sources13 and extrinsic evidence increases,13
individuals who can interpret information from diverse sources will be
called upon to act as adjudicators. J.R. Mallory recalls that the
among legal scholars at the time of the UN Charter of Human
Rights influenced many of the people now judges who were in law school
at the time.
on the Charter will leave its mark on the next generation of judges who

will achieve judicial rank after the turn of the century.14

The emeritus professor similarly foresees that the debate

To be sure, there are always skeptics. For instance, Robert

Martin has alleged that judges on the Supreme Court of Canada belong to
the dominant class in Canadian society and actively contribute to the

dominance of their class through their judgments.15 Drawing on the

philosophy of Miliband, Joel Bakan has similarly advanced the belief

11Su ra, note 8.

13Frederick Vaughan has recently highlighted the influence and
difficulty of using historical sources in adjudication. See F.
Vaughan, “The Use of History in Canadian Constitutional Adjudication,”
Dal. L.J. XlI:1 (April 1989), pp. 59~84.

13A. Wayne Macfiay, “Judging and Equality: For Whom Does the
Charter Toll?” Dal. L. J. X:2 (1986), p. 90.

14See J.R. Mallory, “The Continuing Evolution of Canadian
Constitutionalism,” in Alan Cairns and Cynthia Williams, eds.,
Constitutionalism. Citizenship and Society in Canada (Toronto: U. of T.
Press, 1985), p. 90. H

15Robert Martin, “Ideology and Judging in The Supreme Court of
Canada,” 0.H.L.J. XXVI:4 (1988), pp. 799~832.



that judges are bound by their position in the dominant class and
cannot “easily step outside of, nor transcend such influences.”15
It has not been shown, by the allegations of Prof. Martin nor

Prof. Bakan, how the social class of the average Supreme Court justice
differs from that of other key political players such as prime
ministers, premiers or cabinet ministers. In fact, the real
sociological distinction might be made by education levels not economic
status. Furthermore, the system of judicial appointment has recently
been revised to reflect a broader sample of Canadian society.17 Today,i
young citizens of the middle and lower classes, can earn scholarships,
obtain law degrees, practice law and eventually be seated on the bench,
if they have both the desire and the inclination. The arguments of

Robert Martin and Joel Bakan appear outdated in this context.

A. V. Dicey once observed that the American Supreme Court derives

its existence from the Constitution and therefore can claim equality

with the President and Congress.15 If the Meech Lake Constitutional

Accord is ratified, the Supreme Court of Canada could claim the same
technical equality with Parliament. Under the June 1987 accord, the
Supreme Court would be explicitly recognized in the Constitution for
the first time. Furthermore, former Senator Eugene Forsey has noted
that the Meech Lake agreement will mean a considerable shift of power
from Parliament and the legislatures to the courts in addition to the

“massive shift” already produced by the ggpstitution Act, 1982.19

1°Joel Bakan, “Constitutional Arguments. Interpretation and
Legitimacy in Canadian Constitutional Thought,” O.H.L.J. XXVII:1
(1989), pp. 175. 1

17For a brief and informative outline of the new system see

Canada, Department of Justice, A New Judicial App9intment§_Proce§§
(Ottawa: Minister of Supply and Services, 1988).

15A.V. Dicey, Introduction to the Study of the Lgw of the
Constitution (London: Macmillan, 1915), p. 155.

19Eugene Forsey in Canada, Senate, Debates, 2nd Session. Vol. 131
(June 30, 1987), p. 1147.

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“’ Despite institutional changes, the Supreme Court’s existence
continued to be regulated by ordinary statute throughout the 1970’s.
The Court subsequently moved away from review of common and civil law
and predominantly became a public law court dealing with criminal,
constitutional, and administrative law cases.2°

Until 1982, the Supreme Court was not recognized in Canada’s
Constitution. In other words, the Court authority held no direct
constitutional standing. There is widespread scholarly agreement that
Parliament could have unilaterally abolished the highest court in the
nation, if it had so desired.31 While the Court was resolving numerous
jurisdictional disputes between the federal government and the
provinces, it was itself under federal legislative jurisdiction. The
Report of the Special Joint Committee on the 1987 Accord explained this
predicament, A

It became increasingly anomalous that so important a
federal institution should be subject to the exclusive”
legislative authority of one of the major litigants before
it, namely, the federal governaent.23

j Since the mid—1950’s, numerous constitutional proposals recommended the
entrenchment of the Supreme Court, including the Tremblay Report of
; A 1956, the 1971 Victoria Charter, and the Constitutional Amendpgnt 3111.
19.2.8. (Bill c-6o).23 p
Yet, even The Constitution Act, 1982 did not provide formal

2°Cf. Brian Crane, “Meeting the Challenge ~ The Supreme Court of
Canada in the 1980’s,” in The Supreme Court of Canada, su ra, note 2,
p. 202.

g 31This, of course, would nonetheless have been politically
‘ unlikely.

32Parliament of Canada, Benort of the Special Joint Coppittee of
Earliapent on the 1987 Cqpgitutional Accord (Ottawa: Minister of Supply
and Services, 1987), p. 80.

23Canadian Bar Association, fleport of the Canadian Bar Association

Committee on the Supreme Court of Canpda (C.B.A., 1987), p. 12.
Entrenchment has also been recommended by the Report of the Special
Joint Committee on the Senate and House of Commons in 1972, the
Committee of the Canadian Bar Association on the Constitution in_1978,
and the Pepin-Robarts Task Force on Canadian Unity in 1979.


protection for the Court.24 A scheme for the constitutional
entrenchment of the Court was not part of the proposals tabled in
Parliament by the Trudeau government in October 1980, nor was it
included in the accord reached in November 1981. This was host likely
due to the difficulty in achieving agreement on the provincial role in
the appointment of judges.35

At present, there are only two specific references to the Supreme
Court in the constitution and both refer to amendment. Section 41(d)
of Ihe Constitution Act, 1982 requires unanimity to “alter the
composition of the Supreme Court of Canada,” while s. 42(1) requires
that an amendment to the Supreme Court of Canada, except one dealing
with its composition, must attain the consent of the federal government
and two~thirds of the provinces. Although, ss. 41 and 42 applies to
amendments to the “Constitution of Canada,” s.52(2) of the Constitution
Act, 1982 which lists the instruments that make up the Constitution, it
does not cite the Supreme Coupt Ac . The formal constitution neither
establishes nor defines the Supreme Court, yet, it contains provisions
for its amendment! According to Peter Russell, the Constitution Act,

1982 “put the cart before the horse.”3°
In his short but thorough monograph on the 1987 Copgtitutional

»Accord, Peter Hogg explains the differing interpretations of the

Court’s constitutional status. Prof. R.I Cheffins, we are told, argued
that as. 41(d) and 42(1)(d) accomplish the entrenchment of the Court;
Prof. W.R. Lederman arrived at the more cautious conclusion that only

lthose parts of the Supreme Court Act which define the “basic elements”
of the Court are part of the Constitution of Canada, while the rest can

3‘Jennifer Smith has expressed the belief that the Cogstitptign
A§t;_12§g effectively entrenches the Court, see J. Smith, “The Origins

of Judicial Review in Canada,” Q.J.P.S. XVI:l (March 1983), p. 134.
Barry Strayer, however, provides reasons for disagreement in “Comment

on ‘The Origins of Judicial Review in Canada,’” C.J.P.S. XVI:3
(September 1983), pp. 593-596. i

35§ppgp, note 23, p. 12.
35Peter Russell, “The Supreme Court Proposals in the Meech Lake

Accord”, Capggian Publip Policy XIV:S (September 1988), p. S95.



‘himself, on the other hand, believes that the references in as. 41 and


be amended by the federal Parliament under s. 101.37 Prof. Hogg

42 have no application until the Supreme Court receives explicit
constitutional status.33 “It is inappropriate,” declares Dr. Hogg,
“that the Court which serves as the guardian of the Constitution should
be unprotected by the Constitution.”39 A

It is somewhat ironic that a constitutional accord that was
intended to legally enforce the notion of a distinct Quebec Society3°

and to enshrine Canada’s highest court within our constitution, has
been jeopardized by Quebec’s claim of a linguistic threat no its
distinctness despite the Supreme Court’s wisdom.31 It is this
contentious claim of the need for linguistic protection under the
banner of collective rights, which has led to Quebec’s use of the

notwithstanding clause.32 By issuing a clearly worded decision which

37Peter Hogg, Meech Lake Constitutional Accord Annotated,

(Toronto: Carswell, 1988), p. 30.s Professor Hogg refers to R.I.
Cheffins, “The Constitution Act, 1982 and the Amending Formula,” (1982),
4 Sup. Ct. L. Rev. 42 and W.R. Lederman} “Constitutional Procedure and
the Reform of the Supreme Court of Canada” (1985) 26 Cahiers de droit

33Su ra, note 26, p. S95.

39_b_I_e_ech Lake Constitutional Accord Annotated, supra, note 27, p.
29. “It is generally agreed,” writes Professor Hogg, “that the Court
should be accorded the same constitutional status as the Supreme Court
of the United States and the High Court of Australia,” at pp. 35-36.

3“Quebec has been actively seeking constitutional renewal for a. ,
number of years. Its tactics have frequently involved threatening the
constitutional order. In 1965, for example, Daniel Johnson commented
that Quebec independence from Canada would be “inevitable” if a new
constitution were not passed. See Claude Morin, Quebec versus Ottawa:
The Struggle for Self-government 1960-191; (Toronto: U. of T. Press,
1976): Pa 57.

31For criticism of the province’s reaction to the sign laws
judgments see P.K. Kuruvilla, “Quebec’s Action Has Wrong,” Po icy

Options X:4 (May 1989), pp. 7-8.

“Premier Filmon has attempted to bring the Supreme Court even
closer to the political flame by requesting a reference opinion on the
meaning of “distinct society” within the Accord. For a.point of view
that Quebec would surely not want to hear from the Court see Stephen
Scott, “‘Meech Lake’ and Quebec Society: ‘distinct’ or distinctive?” in

Rea1~A. Forest, ed., L’adhésion gu Quebec 5 L’Acpord du Lac Meech


encouraged the province to invoke s. 33 – the Supreme Court may have
indirectly postponed itsuown entrenchaent. It say now appear to some,
that any, further discussion on the Meech Lake Accord would be fruitless
and acadenic. Nonetheless, discussions of both the hypothetical and
the academic serve to generate‘ images of the Court’s proper

constitutional place .


The 1987 Constitutional Accgrd is a direct result of the “Quebec:
round” of constitutional negotiations. During the First (Minister’s

Conference that led to the agreement onthe patriation of Canada’s
Constitution in 1981, some believed that Quebec was a victim of “the
night of long knives.”-33 Agreenent had been reached without
consultation of Quebec’s Premier; the Constitution was patriated
without the province’s signature. A

In the summer of 1984, Brian Mulroney, leader of the Progressive
Conservative Party of Canada, ran for election with the promise of
initiating constitutional renewal. With Prime Minister Mulroney’s
election in September 1984, the Ministry of Federal-Provincial
Relations began negotiations to seek the signature of the tenth
province on the Constitution. Quebec expressed Iutual interest and,
after the election of Robert Bourassa’s Liberal Government in December
1985, it presented proposals whose adoption would be necessary to
secure the province’s consent. Thus, a dialogue was begun to achieve a
constitutional accord acceptable to Ottawa, Quebec and the other
provinces. An agreement was reached at Meech Lake, on April 30, 1987,
between the Prime Minister and ten provincial premiers to “bring Quebec

into the constitutional family.”-3* Provincial input’ into the

(Montreal: Editions Thénis, 1988), pp. 41-53.
“For an account of one who claimed to have been personally

wounded see René Lévesque, Attendez gue je ne rappelle …, (Montreal:

Québec Auérique, 1986), pp. 436-454.

“The expressionof James Crossland in Policy Options
VII:1O (December 1986), pp- 18-20.»

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nomination of Supreme Court Justices was one of the proposals brought
forward by Quebec and agreed to at Meech Lake. This agreement in
principle was later specified in the Constitutional Accord reached at

the Langevin Block while executive federalism experienced its sleepless

night on June 1987.35

The Supreme Court is the institution most directly influenced by

the Meech Lake agreement.” The proposals contained in the Accord
clarify some of the uncertainties associated with the Supreae Court
provisions of the Constitution Act, 1982.37 If Manitoba and New
Brunswick ratify the Accord before June 1990,33 s. 6 of the
Constitution Amendment, 1987 would bring about six important
constitutional changes to the Supreme Court.“ First, the institution
would be continued as the general court of appeal for Canada. Second,
the make-up of the Court, consisting of a chief justice and eight other
justices with atileast three judges coming from Quebec, would be
recognized in the Constitution. Third, vacancies to the Supreme Court

would be filled from lists supplied by the provinces. Fourth, the

“Achieved in the building that houses the Prime Minister’s Office
in Ottawa, the Accord itself is a product of 19 hours of continuous
deliberation that went on right through the night of June 3rd and 4th
1987. See _G_l_obe and Mail (June 4, 1987), pp. Al-16.

“We are reminded by editors Kenneth Norrie and Francois
Vaillancourt, “Introduction,” Canadian Public Policy XlV:S (September
1988), p. S2. Their special supplenentary issue of Canadian Public
Policy, contains a useful collection of analytical writings on the
Meech Lake Accord. A

“Eric Gertner, “Supreme Court of Canada Reform,” Advocates
Quarterly IX:2 (April 1988), p. 131.

“Recently sole doubt has arisen as to whether the two remaining
provinces nust ratify by 23 June 1990, the third anniversary of the
Accord’s ratification by the National Assembly of Quebec. Frank
McKenna, New Brunswick’s Premier, has implied that the deadline may not

be etched in stone. See Globe and Mail (13 January 1989), p. A3.

“Five new sections would follow a. 101, while six new sub- .
headings would be included into the Judicature part of the Constitutio

Act, 1867. See Appendix for related provisions.

M 119

appointment process, including the new provincial role in judicial
nomination, would be entrenched. Fifth, the qualifications for
appointment, the tenure of the justices and the process for fixing the
salaries of thesupreme Court justices would be similarly protected.
Finally, any constitutional amendment in relation to the Supreme Court
would require the unanimous approval of the provinces, the House of

Commons, and the Senate.“


Under theMeech Lake Accord, the Supreme Court becomesda “creature
of the constitution.” Prof. Russell has claimed that this is important
to national development as Canada evolves from English to a more
Franco–American constitutionalism.“ Unlike the third chapter of the
Australian Constitution which explicitly creates the High Court of
Australia, and unlike the third article of the American Constitution
which provides that judicial power “will be vested in one Supreme
Court,” the proposed amendment to the Canadian Constitution simply
continues the previous role of the Supreme Court of Canada.”

The regional composition of the Court is owed to tradition. There
are three justices from each of Ontario and Quebec, two from the West
and one from the Atlantic region. In 1979 this pattern was temporarily
altered when William Mclntyre of British Columbia replaced a retiring
Ontario Judge. Shortly thereafter, however, the pattern was restored

when the first woman appointed to the Court, Madame Justice Bertha

Wilson, replaced Justice Martland of Alberta. “As with all major

organs of government,” James R.» Mallory has reminded us that, “the

Supreme Court is constituted, (both de facto and de jure, on

‘Wfiepgrt of the Jgint Committee on the 1987 Constitutional Accord,
supra note 22, p. 80. N

“Peter Russell, _s_upra, note 26, p. 894.

“The proposed 3. 101A(1) states that “[t]he court existing under
the name of the Supreme Court of Canada is hereby continued as the
general court of appeal for Canada.” a

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I of the Supreme Court, it does enshrine the Court’s composition at nine


representative principles.”‘3 Some witnesses appearing before the
Special Joint Committee of the Senate and House of Commons on the 1987
Constitutional Accord suggested that regional representation should be
guaranteed in the Constitution; others lamented that representation was
not guaranteed for women, for the aboriginal peoples or other

While the Accord does not explicitly recognize the regional nature

members,45 at least three of which must be from Quebec. Eugene Forsey
explained that the words “at least three” may have been used by the

Accord’s drafters to allow for the situation where one of the three

Quebec judges on the Court is appointed Chief Justice and the vacancy
left for a puisne judge is filled by another judge from the province,”
so that there would be a Chief Justice and three other justices from
Quebec.45 1 A

The entrenchment of a three out of nine formula has already been
proposed by the Victoria Charter in 1971, the 1978 Canadian Bar
Association Report (Towards a New Canada), and the White paper of the
Liberal Party of Quebec in 1980.47 Bill C-60, in 1978, proposed that
four out of eleven judges be drawn from the civil law province; the
Report of the Pepin-Robarts Commission, in 1979, advocated that five of

eleven Supreme Court justices be appointed from Quebec. Both, the C-60

and Pepin~Robarts proposals, would have given the province increased


l‘3For a lucid introduction to the federal court system see
Professor Mallory’s The Structure of Canadian Government, rev. ed.

.(Toronto: Gage, 1984), pp. 322-326.

9‘Report of the Joint Committee on the 1987 Constitutional Accord,

supra, note 22, p. 82.

i451O1A(2) states that “the Supreme Court of Canada shall consist
of a chief justice to be called the Chief Justice of Canada and eight

other judges.” A A
‘5Canada, Senate, Debates, 2nd Session, CXXXI:66 (1987), p. 1545.

47Robert Décary, “L’Accord du Lac Meech et la Cour supreme du

Canada,” in L’adhésion du Quebec 5 L’AgQord du Lag Meech ggpgg, note
32’ pa


In its report on the Supreme Court of Canada, the Canadian Bar
Association recommended that Quebec’s share of the judges should be
modified, from three out of nine, to “at least one-third of the total
number.”‘3 At the same time, the Association urged that the total
number of judges not be specified in the Constitution. According to
the C.B.A., adjustment of the Court’s size best left to
Parliament since it has already changed three times in the past, may
have to change again, and the unanimity requirement in the amending
procedure would make future change very difficult. In the
Association’s view, “the danger of court-packing is so remote and the
need for future legitimate change is so likely, that the more flexible

alternative is preferable.”‘9


“One of the most often heard criticisms of the Constitutional
Accord, 1987 is that it transfers too much power from the federal
government to the provinces.5° This point was heard early and it has
been made repeatedly. Jack London, professor of law at the University
of Manitoba, declared that the Accord would “balkanize” Canada.
“Eleven poweréhungry politicians have reached a hastily drafted
agreement which may in fact be an agenda for the dismemberment of our
country,” alleged Michael Bliss, professor of Canadian History at the
University of Toronto, who otherwise described the Accord as “smash and
grab constitution making.”51 Pierre Trudeau was even less reserved in
his journalistic condemnation of Meech Lake. In his invective, which

often bordered on unabashed ad hominem attack, the former Prime

49 e rt on the Sn reme Court of Canada, su ra, note 23, p. 19.

‘”1219-o P- 13-
5°For an alternative view see David A. Milne, “Much Ado About
Meech,” in Peter M. Leslie and Ronald L. Watts, eds. Canada: The State

of the Fede ation (Kingston, ON: The Institute of Intergovernmental
Relations), pp. 99-115. Prof. Milne contends that “the centralist

lament is overdone,” p. 115. M
51Globe and Mail (6 June 1987), p. D2; (23 May 1987), p. D2.v



Minister declared that acceptance of the Accord7s proposals would
render the Canadian state “totally inpotent” and would destine the
nation “to eventually be governed by eunuchs.”53

The argument, that the Accord excessively decentralizes Canada by
granting the provinces unwarranted power, has equally been used with
specific reference to the provisions affecting the Supreme Court.
Defending the virtues of an integrated judiciary which he sees as being
threatened by Meech Lake, David Baugh, Assistant Professor of Political
Science at St. Francis Xavier University, has explained that the same
method of appointment has been proposed for both the Senate and the
Supreme Court, thereby obscuring their “radically different function in
,the Canadian political system.”53 Dr. Baugh has lamented that, “with
the demands upon the Courts increasing in the age of the Charter, now
is not the time to emphasize local particularisns.”54

Testifying before the Special Joint Committee on the 1987 Accord,
Mr. Trudeau alleged that, with respect to the Supreme Court, provincial
governments will be “exercising remote control over a body which thus
far, has been entirely the responsibility of the federal governaent.”55
A similar fear has been expressed by John Whyte who has cautioned that

the altered appointment process could require future judges to act

53Pierre Trudeau, “Say Goodbye to Dream of One Canada,” The

A Toronto Star (27 May 1987), p. A1. For a more theoretical, and less

rhetorical understanding of the Accord see Katherine Swinton,
“Competing Visions of Constitutionalisnz Of Federalism and Rights,” in

K. Swinton and Carol Rogerson, Conpeting Constitutional Visions

e(Toronto: Carswell, 1988), pp. 279-306. a

A 53David Baugh, “Taming the Meech Lake Monster,” _B_9_l_i__<;x Qpt_i_o_I_1__s_,
IX:4 (May 1988), p. 30. ‘

54Ibid. In opposing the method of noaination, he claims that “it
is not customary to the perspective of provincial governments, which

were created to represent particularistic [sic] interests, to cleave to A

the universal outlook.”

“Canada, Proceedings of the Special Joint Committee 9f the Senate

and House of COIIODS on the 1987 Constitutional Accord, XIV, 27¢August
1987, p. 117.


under a mandate reflecting the interests of various provinces.5‘
“History may question, however, whether such a ¢,gndate’ will ever

exist. 1 A

A Political loyalty cannot be assured, nor should it be expected,
when appointing candidates to the judiciary. Judges on the Supreme
Court are responsible to the Constitution not the parties who appoint.
them. The political arena of American society brings two examples
readily to mind. In one instance it is fair to say that Franklin
Roosevelt would have been very surprised to read the later decisions of
Felix Frankfurter whom he nominated to the United States Supreme Court.
In another instance it can be said chat Dwight Eisenhower discovered
the true meaning of judicial independence after he appointed Earl
Warren, a former California Governor and fellow Republican, to the U.S.
Supreme Court. By naming Dr. Warren to the American Court, Dwight
Eisenhower expected that the new Chief Justice would adhere to a strict
constructionism. The inverse, however, turned out to be the case.
Warren C.J.’s decisions reversed precedent,«ended publicly supported
racial discrimination and extended constitutional guarantees to
segments of the population that had historically been neglected by
political society. The Chief Justice adamantly resisted the
conservative philosophy of the executive which appointed him.57 In
fact, during the later years of his life, Mr. Eisenhower frequently

5°John D. Whyte, “Submission to the Special Joint committee of the
Senate and House of Commons on the 1987 Constitutional Accord,” Queen’s

Qgggtgrlx, XCIV:IV (Winter 1987), pp. 804-805.

57During the Spring of 1954, prior to the U.S. Supreme Court’s
judgesent in the school desegregation cases, the President invited Earl
Warren to a White House dinner and sat him near John W. Davies, counsel .
for the segregated states. According to Chief Justice Warren,
“Eisenhower went to considerable length to tell me what a great mmn Mr.
Davis was.” Later as the guests were leaving the dining room,
President Eisenhower took Warren C.J. by the arm and explained that
segregationists “…are not bad people. All they are concerned about
is to see that their sweet little girls are not required to sit in
school alongside some big overgrown Negroes.” The Chief Justice wisely
ignored the President and a few weeks later his court rendered Brown

vs. The Board of Education of Topeka (1954) 347 U.S. 483. See Earl

Warren, The Memoirs of Earl Warren, (Garden City, NY: Doubleday, 1977),
at pp. 291-292.


remarked that the “biggest damned fool mistake” he ever made was
appointing “that dumb son of a bitch Earl Warren.”53 –

On the question of alleged political bias in the Canadian
judiciary, the Special Parliamentary Joint Committee on the 1987 Accord
seemed unconvinced. The committee discounted the threat of regional

fragmentation within the Court. Its report affirms that a provincial

‘bias among newly appointed judges is no more likely than a federal bias

“among the present judges of the Supreme Court.59 Commenting on the

outstanding recent appointments to the Court, Yves Fortier, a.former
President of the C.B.A. suggested to the committee that “there is no
reason to believe that because another partner in Confederation is
going to have a say in the appointment of judges … this tradition of
excellence is not going to be duplicated.”°° Furthermore, Prof.
Russell has said, that although the Meech Lake proposals give
provincial governments a primary role in the appointment of Supreme
Court judges, control over the appointment of Provincial Court of
Appeal judges and appointments to the province’s general jurisdiction
trial courts remain entirely in Ottawa’s hands.51

Those who have sought leave to appeal from Provincial Court of

Appeal and the Federal Court of Appeal have been half as successful

, 53Bob Woodward and Scott Armstrong, Ihe Brethren (New York: Simon
and Schuster, 1979), p. 10 and Stephen Ambrose, Eisenhower: The

President (New York: Simon & Schuster, 1985), at p. 190.

59According to the Report of the Joint Committee on the 1987
Consitutional Accord, supra, note 22, at p. 83:

Legal scholars who have examined the issue [of] whether the

Court has displayed a federal bias in its constitutional
decisions have been unable to substantiate any such bias.
Indeed, recent constitutional jurisprudence would, if
anything, suggest a provincial bias. This is particularly ,
evident in the Court’s recent approach to the paramountcy
doctrine, i.e. the Court has refused to declare inoperative
provincial laws which are arguably repugnant to federal laws
except in the limited circumstances where obedience to one.
law would result in a breach of the other.

°°1bid., p. 86. “The cream rises to the top, explained Mr.
Fortier, “whether you are looking at the cream with provincial eyes or

with federal eyes.”
‘1Peter Russell, supra, note 26, p. 898.


this decade as compared to last.°3 Prof. Russell reasons that, since
the Supreme Court can review only lito 3 per cent of the four to five
thousand decisions rendered by the provincial and federal courts of
appeal each year, these intermediate review courts (over which the
federal government has exclusive jurisdiction) become, in effect, final
courts of appeal for many legal disputes.33 Following this argument,
allowing provinces to nominate Supreme Court judges would not appear to
substantially alter the judiciary’s orientation. The Prime Minister,
it should also be noted, retains the prerogative to appoint the crucial
chair of Chief Justice of Canada from among the sitting members of the

However, the judges on the present Supreme Court have been

ppredominantly recruited from provincial courts of appeal; they are

experienced, and are very highly regarded in the legal and academic
communities. It is uncertain whether this quality would continue under
the aforementioned appointment process. In fact, the manner of

appointment was the most contentious issue in agreement on the Supreme

Court’s entrenchment.
Future Premiers and Prime Ministers should recall President

Eisenhower’s frustration and refrain from attempts to influence the
independent branch. Judicial appointments are best made on merit, not

political consideration.



“ The new procedure for appointing judges is the most substantive

change to the Supreme Court of Canada, brought about by the Meech Lake

Accord. Under the Constitutional Amendment, 1987 s. 101C, when a
vacancy occurs in Supreme Court of Canada the provinces submit names of

qualified individuals and the federal Minister of Justice chooses a new

judge from this list. When a vacancy occurs from Quebec, Ottawa must

‘zlbid. The number has declined from just under 30 per cent to
just over 15 per cent. “




chose a person whose name has been submitted by the Government of
Quebec. This method allows for provincial input while leaving the
final decision to the federal governnent.

In rebuttal to Pierre Trudeau’s written condemnation of the
Accord, Lowell Murray, the federal Minister of Federal-Provincial
Relations, defended every provision of the 1987 constitutional
agreement and expressed surprise at Mr. Trudeau’s opposition to a

procedure based on the Victoria Charter and the former prise minister’s

town Bill C-60.54 Yet, as usual, the father of the Charter was ready to

debate. “There is a great difference,” retorted Mr. Trudeau in defence
of his own earlier proposals, “between telling the provinces on one
hand they will be able to chose between three nanes put forward by the
Federal government to the Supreme Court, and on the other hand saying
the only names of people who will go to the Supreme Court are to be
named by the provinces.”55

In fact, the Iethod of appointment under the 1971 Victoria Charter
was more complex. It involved the Attorney—General of Canada inforning
his provincial counterpart of the federal government’s choice. The
attorney-general of the concerned province would then have ninety days
to approve the nomination or send it to a college consisting of ten
attorneys-general or, if he so desired, to a college consisting of
himself, the Attorney—General of Canada, and a president chosen between
them.55 The federal Attorney-General would then submit the names of
three candidates to the college. The Special Joint Committee of the
Senate and House of Commons endorsed the appointment provisions of the
Victoria Charter with the modification that both Attorneys- General

submit the names to the college.

“Lowell Murray, “Reply to Trudeau,” Globe and Mail (May 30,
1987), p. A6. °

“Canada. PPQ,Q§r9d5-318.1 of the Sn

and House of Commons on the 1987 Constitutional Accord, XIV, 27 August
1987, p. 157.

‘°If the two parties could not agree on a suitable individual, the
responsibility would fall on the chief justice of the province.


Bill C-60 retained the spirit of the Victoria method of
nomination, while providing that the issue of nomination be taken to
committee within ten days and that the choice of the committee be
urgently approved by a.House of the Federation. Ontario’s advisory
committee on the constitution recommended, in 1978, that judges be
named by the federal government and ratified by a House of Provinces.57
That same year, a report of the Committee on the Constitution of the
Canadian Bar Association advised that the Provincial role in the
appointment of Supreme Court judges be exercised through an Upper House
representing the provinces. The C.B.A. report recommended that the
Upper House approve nominations in camera after public hearings.55 The
Pepin-Robarts Report on Canadian Unity went further than the bar
association by advising that the federal government submit names to the
Council of the Federation only after direct provincial consultation.59

To appreciate the horizon of possibilities, one may wish to note
of the variety of methods used to make judicial appointments to the
world’s highest tribunals. In the United States, judicial appointments
to the Supreme Court are made by the President and must be ratified by
the Senate.7° This is a highly politicized process which may be
contrasted with the nomination of Supreme Court judges in Colombia
where judges are appointed by members of the bench.71 _

In Great Britain, Law Lords are appointed by the Prime Minister on
the recommendation of the Lord Chancellor acting on the advice of an
administrative committee. The Australians, have a system whereby the
Governor in Council of the Federation is under a statutory requirement

to consult the States when nominating judges to the High Court. In New

57Décary, su ra, note 47, “L’Accord du Lac Meech et la Cour
supreme du Canada,” pp. 93~94.

°3Canadian Bax Association Committee on the Constitution, Towards
g_flgg_Qgngg§, (Montreal: The»Canadian Bar Foundation, 1978), p. 60.
6900. Cito

7°As witnessed by the rejection of Ronald Reagan’s nomination of
Robert Bork and Daniel Ginsburg, the confirmation of the President’s
choice is by no means a fait.accompl’.

71Décary, su ra, note 47, p. 95.


the States.


Zealand, judges are selected by the Attorney~Genera1, from a list
prepared by the Chief Justice. The name of the New Zealander selected
by the Attorney-General must be given to the president of the bar
association and approved by thebar before being submitted to the

Cabinet and then the Governor General.73


But if ever the Supreme Court came to be composed of rash
or corrupt men, the confederation would be threatened by
anarchy or civil war.

Alexis de Tocqueville73
One of the main shortcomings in the method of appointment in the
Meech Lake Accord is that there is no provision for breaking a
deadlock. If the provinces keep submitting names that are unacceptable
to the federal government, an impasse will result. ‘This appears less
likely for appointments from outside of Quebec. Prof. Hogg is of the
view that the federal government will be able to “shop around” among
provincial lists and this will create a “healthy competition” among the

provinces to contribute the most qualified candidate.74 “A

72;g;g. Décary also explains that in Israel, judges are named by
the President (who is head of state but not head of government), on the
recommendation of a committee formed by 3 judges of the Supreme Court,
2 members of the govexnment, 2 members of the Knesset and 2 members of
the Bar. We also learn that in Belgium, the government presents a list
of candidates to the Senate which narrows it to two names approved by a
two thirds majority and the King chooses one of the two names. In
contrast we have the West German example where halfaof the sixteen
judges are elected by a committee of the federal Parliament, while the
other half is selected by the Council of the Federation representing

73Democracy in America J.P. Mayer, ed., George Lawrence, trans.
(Garden City, NY: Doubleday, 1969), p. 151.

74Meech Lake Constitutional Accord Annotated, supra, note 27, p.
350 I


constitution that relies on conityy” Poaits Peter Russell, “is to be
preferred to one that anticipates discord.”75

Others have been less optimistic and have cautioned that although
provinces will be able to indefinitely nominate candidates, the federal
government will not be able, “for fear of appearing unreasonable,” to
indefinitely reject provincial nominations.7‘ Peter Leslie, however,
has underlined the political pressure on both levels of government not
to play politics with judicial appointments. “I believe both orders of
government will have every incentive to act reasonably and responsibly

in the appointments process,” writes Mr. Leslie, “the Canadian public

…would not put up with anything less.77 4
It has been suggested that although there may be eventual

agreement between the levels of government, delay in the form of a
prolonged deadlock would severely hamper the reduced membership on the
Supreme Court from functioning efficiently.73 However, appearing
before the Special Joint Committee, Robert Décary explained that it
would be ‘unthinkable’ under our democratic system to suggest that
governments could not reach agreement on judicial selection 9during a
reasonable period of time.”79 Elsewhere, Guy Tremblay has argued that
a deadlock breaking mechanism would not necessarily be desirable.
Drawing upon the ideas of Montesquieu, Prof. Tremblay has suggested

75Peter Russell, su ra, note 26, p. 8102. Notwithstanding
Professor Russel1’s assurances, it may be wiser to live under a
Constitution that allow us to deal with the unanticipated.

75Peter Leslie, “Submission to the Special Joint Committee of the
Senate and House of Commons on the 1987 Constitutional Accord,”

Queen’s Quarterly, XCIV:IV (Winter 1987), p. 778. This is his own

771bid., p. 789

75One short—tera so1ution.wou1d be to invoke a. 30 of the Supreme
Court Act, under which the Chief Justice has the authority to appoint
ad hoc judges “where at any time there is not a quorum” of regular
judges available to sit. The Federal Court or provincial superior
courts could provide the ad hoc justices.

79Eeport of the Joint Committee on the 1987 Consitutional Accord,

su ra, note 22, p. 84.



that constitutions are best organized in such a manner that cooperation
is necessary to succeed.°° h

It is worth noting however, that while there is a requirement on
the part of the federal government to select names from provincial
lists, there is no responsibility incumbent on any of the provinces,
including Quebec, to submit candidates for nomination.91 This appears
to present no great problem for Peter Leslie, Guy Tremblay, Robert
Décary, Peter Hogg, or Peter Russell. In fact, in the likelihood of a
separatist government in Quebec nominating only radicals to vacancies
on the Supreme Court, Prof. Russell argues that:

No one can say that this will never happen any more than we
can be sure that without Meech Lake a fiendishly illiberal
government in Ottawa would not some time in the future load
up the Court with right-wing centralizers.32

Eugene Forsey and Stephen Scott appear to be much more preoccupied
than Prof. Russell on the danger of Quebec’s exclusive nomination of
judges unacceptable to the rest of Canada. According to Dr. Forsey, a

Péquiste government might not say, “we will snarl things up properly by

not nominating anybody,” but they might say “we will suggest someone
for appointment in the Supreme Court who would make things very
difficult for the rest of the members of the court and cause a great
deal of trouble which will help us get our way and break up
Confederation.”33 Along a similar vein, Stephen Scott fears that a so-
called ‘list’ may contain one name only. With respect to such a
dilemma, the McGill University Professor of_Law explains:

I look back upon the last half-century, and realize that
for about twenty years, no Supreme Court judge could have
been appointed (under the 1987 Accord scheme) from Quebec who
was not a product of Duplessism, or at least someone who had
made his peace with Duplessism. For nearly another ten
years, no judge could have been appointed unless nominated by

3°See Tremblay, “La réforme des institutions et de la formule

d’amendement dans l’Accord du Lac Meech,” in ‘adhesion u uébec

L’Accord dg Lac Meech, supra, note 32, pp. 84-85.

51The provinces, including Quebec, ‘may’ nominate individuals but

ithe federal government ‘shall’ chose from the nominations.’

33Russell, supra, note 26, p. 8102.
33Senate, Qebateg, 2nd Session, CXXXI:66 (1987), at p. 1545.


a government which was not merely dedicated to. the
dismemberment of the Federation but which itself placed a
statue of Duplessis on Quebec City’s colline parlementaire,
where the Legislature sits. We may hope that nothing
comparable will ever occur. To frame a constitution on such
assumptions is, however, naive and, indeed, irresponsible.54

According to Prof. Scott, if the motive of provincial
participation is merely to exclude pro-federal bias and not encourage a
regional one, it would have been better to allow all provincial
governments to nominate qualified candidates for all provinces
especially Quebec.35 It would be difficult to disagree with Dr. Scott

on this point.

one LOOP nous TO 003 smgn

Our constitution was intended to be a protective garment,

not a strait~jacket. .
i J.R. Mallory35

There may be a loop hole in the language under which the federal
government must make judicial appointments. In other words, the
situation may not necessarily be as inescapably constricting as may
first appear. Section 1010(1) provides that “where a vacancy occurs”
in the Supreme Court, each province may, “in relation to that vacancy,”
submit names of qualified persons for appointment.37 Section 1010(2)

then states that the federal government must appoint a person whose

‘name “has been submitted” under subsection (1). The specific use of

the past tense in subsection two may be the key to Ottawa’s potential

,rejection of spurious lists submitted by mischievous provinces,

including Quebec.

3‘Stephen Scott, “The Supreme Court of Canada andythe 1987

Constitutional Accord,” in Lflaghésion gu Quebec Q L’Accord gu Lac

flgggh, gupgg, note 32, p. 140.
‘51bid., p. 139.

35″Constitutional Amendment Now,” Ihe Dalhousie geview XXIII
(April 1943), p. 35. 2 8

37One may assume that there are four types of possible vacancies
to the Supreme Court: a vacancy form the Western Provinces, a vacancy
from Quebec or Ontario, and a vacancy from the Atlantic Provinces.




One may be tempted to assume that since there is no allowance made
for a province to withdraw a name or list once it has been submitted,
there would be nothing stopping the federal government from keeping
provincial nominations on file and making use of them in deadlock
situations. Under this scenario, a list submitted by a former
government of Quebec or other province would be used to make the
appropriate appointment to the Supreme Court and circumvent a more
recent undesirable provincial list. This possibility has not yet been

Admittedly, such a manoeuver by the federal government would run
contrary to the political spirit of the Meech Lake Accord. Then again,
the same could be said of an attempt by a future Quebec government to
submit unacceptable names to Ottawa.39 ‘

Acceptable provincial nominees, who are not selected to the
Supreme Court on their initial nomination, would be no less qualified
if another vacancy for the same position arose a few years later.9°
This would be true regardless of the shifting whims of provincial
politics, nationalist or otherwise. If a Supreme Court candidate is
worthy of representing Quebec or another province for one vacancy and
does not get selected, he or she will surely be worthy of representing
the province when the next vacancy occurs for the same position. If
the Meech Lake Accord is adopted, one might urge the federal Ministry
of Justice to keep provincial nominations on file in case a future
deadlock makes viable an attempt of this potential deadlock-breaking

33To the best of the author’s knowledge.
39The same ploy could be orchestrated if other provinces attempted
to sabotage the appointments process.

°°Granted of course that the person in question had neither been
disbarred and nor reached the age of 75.

vvu‘ v ryyna-i


nomination scheme.91 Inventive devices may be necessary to shield

against the “straight-jacket” effect.


While supporting the Meech Lake provisions dealing with the
Supreme Court, Edward Mcwhinney, a constitutional expert of
international renown, has encouraged that submissions of potential
appointments be reviewed by a House Judiciary Committee for public
hearings.92 Dr. Mcflhinney is one of a number of scholars who have made
similar suggestions.

Considering the unprecedented media coverage of the courts’
activities under the Charter, J.R. Mallory has said that, “since the
public rarely perceives anything unless it receives the message from
the media this coverage could be of enormous importance, adding to
political discourse a dimension previously absent — even among
political scientists.”93 The growth in public awareness of the Charter

and the open appointment process encouraged by the Meech Lake Accord

91Provincial cooperation today could avoid future deadlocks. For
example, if the Meech Lake court nomination process was presently being
used, Robert Bourassa might send Ottawa the following recommendation:
With respect to a Qpebec vacancy on the Supreme Court of
Canada, the Province of Quebec nominates: Charles Gonthier,
Paul~Arthur Gendreau, and Guy Gilbert.
If a separatist party comes to power in next few years and nominates
nation-breakers to fill a Quebec vacancy to the Supreme Court, the
federal government could rely on the Bourassa list. Notice that the ,
wording of the above recommendation conforms to the text of the 1987
amendment and yet allows both the governments of Quebec and Ottawa to
thwart a future separatist initiative. This would not be possible,
however, if the recommendation were worded in a more specific manner.
For example, it would be of little use, in the future, if Quebec’s
message to Ottawa read: “With respect to the vacancy left by Mr.
Justice Jean Beetz [or any other specific judge] Quebec nominates …”

“Under the Meech Lake Accord, cooperation among present governments is

necessary to allow the federal government the ability to reject
unreasonable lists in favour of competent candidates.

°3Canada, Proceedings of the Special Joint Committee of the Senate

and House of Commons on the 1387 Constitutional Accord, XV, 31 August
1987, p. 64.

93See J.R. Mallory, supra, note 14, p. 91.



will undoubtedly increase demands for judicial accountability and
public scrutiny. Peter Russell, however, has warned of the subsequent
risk of the process turning into an American-style popularity contest.
Prof. Russell is also alert to this fact:

If a person is being considered for appointment to an office
in which he or she can play such a powerful role for years in
shaping the rights of citizens and the powers of government,
why it will be asked has not the public a right to know
something about where the individual stands on the basic
principles of the constitution and the judiciary.94

The recent report of the C.B.A. on the Supreme Court of Canada
‘recommends that, without any change in the Meech Lake text, statutory
provisions could be introduced to ensure that provincial lists be

compiled on the recommendation of advisory committees composed of

representatives of the bench, the bar, non-lawyers and both levels of
government.95 Such a method would encourage nomination lists being
filled with candidates of high quality. It is difficult to imagine a
situation in which the provisions in the present Meech Lake Accord

would be preferable to the suggestion of the Bar Association.

aasponnruc TOSMEECH LAKE

“On the whole,” said Eugene Forsey in his initial reaction to the

(Meech Lake Accord, “it looks to me that the price that would be paid is

not an unreasonable one.”95 However, the wise octogenarian was quick
to change his mind. A few weeks later, in an essay published in
Canada’s National Newspaper, Dr. Forsey tempered his original praise
for the Accord by stating that if its “vague aspects” are not cleared
up “we risk landing in a hog we can never escape.”97 Eugene Forsey is

not alone in sober reconsideration.

94P. Russell, supgp, note 26, p. S103.

95Repgpt on the Supreme Court pf Cppgga, supra, note 23, p. 19.

9‘Dr. Forsey’s comment was recorded in the obe and M il (23 May
1987), p. D2.

.97Eugene Forsey, “Vague aspects of the Meech deal pose a big

threat,” Globe and Mail (1 June 1987), p. A7.



Hhilethe intent of the Meech Lake Accord and its proposed
entrenchment of the Supreme Court of Canada may be praiseworthy,93 a
close examination of the text reveals a few flaws that beg
reconsideration. The Special Joint Committee recommended that s. 1010
of the Accord be amended to allow for members of the Bar of both the
Yukon and the Northwest Territories to be considered for appointment to
the Supreme Court. Currently, Meech Lake’s provisions would preclude
such individuals from consideration unless they were also members of
the Bar of a province. Let us, however, take this recommendation one

step further. If we recognize that the intent of the 1987

aconstitutional Accord is to allow provinces input into judicial

appointments but not control, then we must side with Prof. Scott and
encourage the Accord to be rewritten as to allow all governments
(including the territories) to propose names for all seats on the
Supreme Court, including the three reserved from the Province of

With respect to skewed nominations, it is not reasonable tow
request provincial ‘lists’ without requiring a minimum number of names
on such submissions.‘°“ Furthermore, in light of the possibility of
deceptive wrangling from a separatist court sabotage or from a federal
government nominating judges from old nomination lists, we would all be
better served by a clear, but not encouraged, deadlock breaking
mechanism of last resort. The present alternative is dangerous and
short-sighted. We may err needlessly on the side of carelessness by
assuming that a spirit of federal—provincial cooperation will
indefinitely continue.

Thus far, the Supreme Court has been reluctant to recognize any

special status for the Charter with respect to the rest of the

°3Most importantly, the Accord increases the Court’s legitimacy
and relative independence from Parliament. Entrenching the
qualification for Supreme Court judicial appointments, the tenure of
its Justices and the process for fixing their salaries, reduces the
possibility of certain types of political interference.

99Professor Scott has suggested that nominating provinces submit a
minimum number of seven names. See 8. Scott, supra, note 84, p. 143.

loolbi _

‘ “”71:$”‘II3 ma“ .‘

“‘\’.v “PVT” ” w@T’§’§ ;w ‘


Constitution. In the Catholic School Reference case, the Court

overturned the Privy Council’s Iggy decision of 1926 which had
prevented the extension of separate school funding in the province of
Ontario.1°1 It was held that the rights outlined in as. 93(1) and
93(3) of the Constitution Act, 1867 were ‘immune’ from Charter review
because s. 93 represented a “fundamental compromise of Confederation in
denominational schools” and the province’s plenary power to enact such
legislation was constitutionally guaranteed. According to the
majority, the Charter cannot provide for the autonatic repeal of any
provision of the Constitution of Canada. In light of this decision and
submissions made to committee, the Canadian Senate has proposed that
Meech Lake be modified to ensure that the interpretation of the Charter
prevails over any other section or clause of the Constitution. Such a
modification would improve both the Accord and the Charter.

If finally adopted the rest of the Meech Lake text would give the
Supreme Court greater interpretive responsibilities., Premier Filmon
has already advocated a reference case on the issue of Quebec’s
‘distinct society’ and the term “national objectives,” in reference to
the spending power, has been described as “a gift to the constitutional
lawyers of the future.“

It will ultimately be up to the Court to give legal meaning to the
words in the controversial clause. Therefore, although the Accord now
appears to be skirting the Styx, it is essential that any future
constitutional provisions dealing with the Supreme Court are themselves
clear and cogent. Otherwise, future generations will be left with a
constitution that is ineffectively rigid on the possibility of its
amendment and dangerously equivocal in its provisions. Tomorrow’s
Canadians will surely regret our political and intellectual

acquiescence if we do act not on the Accord’s improvement while it is

still possible.

1°1Re erence Re i ct to Amend the Educatio Act Out.

0 A
1 S.C.R. 1148. See also Iipz Began Catholic Separate Sghool Trustees
v. The King [1928] A.C. 363.



The Charter itself might also be ameliorated. There are mixed
opinions, however, about removing the notwithstanding clause.

It has been alleged that the Charter encourages issue avoidance
and allows politicians to escape the toll of controversial political
decisions.1°2 Yet, issue avoidance is by no means a recent phenomenon,
the document cannot be blamed for legislators which lack resolve. The
history of Canadian constitutional adjudication is replete with
examples of the people’s elected representatives turning to the Courts
to avoid crucial policy options.1°3 In fact, more than four decades
ago, Harold Innis cautioned that the Supreme Court “ought not to be in
a position in which the government can use it as a doormat on which to
wipe its muddy feet.”1°4 However, then as today, someone must be
charged with removing the muck of intolerance and injustice. History
has shown that too many of our elected representative are usually
either frightened of the political consequences of wearing clean shoes
or ineffectively covered in the sludge of prejudice or indifference.
Yet, if the current political trend continues, the Supreme Court could
be given greater authority in the protection of rights and freedoms.

Brian Mulroney has recently called for the removal of the
notwithstanding clause from the Charter explaining that, “a
Constitution which does not protect the inalienable rights of

1°3Cf. F.L. Morton, “The Political Impact of the Canadian Charter
of Rights and Freedoms,” C.J.P.S. XX:1 (March 1987), p. 51; Michael

Mandel, The Charter of Rights and the Legalization of Eplitics in

Canada (Toronto: Wall and Thompson, 1989), “the Charter and the courts
will continue to provide politicians with a means of avoiding going
directly to the people when there is no political profit to be made, or
when the likely results are unpalatable,” p. 63.

1°3For a sample of such issue avoidance see J.R. Mallory’s Social

Credit ccc the Eederal Power in Canada (Toronto: U. of T. Press, 1954).

1°‘flarold Innis, from a lecture delivered at the University of
Nottingham on May 21, 1948. “Great Britain, the United States and

Canada,” in Essays in Canadian Economic History M.Q. Innis, ed.,

(Toronto: U. of T. Press, 1956), p. 401.’



individuals is not worth the paper its written on.”1°5 Quebec has also
consented to consider the deletion of the non obstante clause, if and
when the Meech Lake Accord becomes law.

Although the use of the notwithstanding provision has been
extensively criticised outside of Quebec, some observers are not
convinced that it should be removed. In fact, Reg Whitaker has landed
the use of the notwithstanding clause by the Bourassa government and
said that the cancelation of s. 33 would “be an act of folly.”1°°
Prof. Whitaker has elsewhere referred to the notwithstanding clause as
“a quintessentially and uniquely Canadian device which in effect says
we have entrenched rights if necessary, but not necessarily entrenched
rights.”1°7 For his part, Patrick Monahan views a. 33 as a “saving
provision, designed to protect legislative jurisdiction.”1°3 However,

considering the quality of Supreme Court’s decisions and the way the

clause has been used in Quebec, one is tempted to side with those who

would have it removed.
Michael Mandel, in his usual conspiratorial manner, alleges that

the Supreme Court intentionally sought to provoke a political debate on

s. 33 by using its sign language judgments as a means of encouraging

the repeal of s: 33.109 Yet, Prof. Mandel does not substantiate this
allegation. To speculate that Supreme Court judges would intentionally

use important judgments to lobby for specific Constitutional change is

1°5Michel Vastel, Le Qevoir (April 7, 1989), pp. 1, 18.

1°5According to Prof. Whitaker, s. 33 is “the only way to temper
the olitical havoc which could otherwise be wrought by the rationalist
application of individual rights without regard to circumstance —
especially in a society divided by language and culture.” See R.

Whitaker, “The Overriding Right,” Poli 0 tions X:4 (May 1989), pp. 3-


1°7R. Whitaker, “Democracy and the Canadian Constitution,” in
Keith Banting and Richard Simeon, eds., And No One Cheered (Toronto:
Methuen, 1983), p. 257.

1°5Monahan places ss. 6(4) and 15(2) in the same category. See,
Politics and the Constitution (Toronto: Carswell, 1987), p. 118.

199M. Mandel, supra, note 102, p. 81. In a passage dripping with
suspect allusion, Prof. Mandel suggests that the judicial reticence
during the Bill of Rights era was a political strategy to increase the:
power of the bench.


not only dubious, but it cradles the absurd. Yet, under the
notwithstanding clause Juvenal’s timeless question11° must be answered
as such: On matters of fundamental freedoms in Canada, the controllers

still control themselves.

Lawyers have come under heavy criticism for allegedly taking
advantage of the Qhccccc by charging exorbitant fees. “This practice is
also said to block possible access to the Supreme Court. Peter Russell

has noted that “the easiest way to score a cheap shot against the

Charter with most audiences is to tell them how much money the legal

profession is making out of it.”111

Nonetheless, although the Charter has increased opportunities for
citizens to obtain remedies, the high cost of constitutional litigation
has made such occasions elusive for many individuals. There have been
few proposals to counteract this problem. David Matas has justly
called for a comprehensive court challenges program to be implemented,
at the federal or provincial levels. Mr. Matas aptly summarizes the
present dilemma:

The rich, can pay the cost of litigation out of their own
pockets. The poor can ask for legal aid to pay. Those in
between can do neither.112

Since the courts have given the Charter “full scope,” Mr. Matas argues
that litigants should be accorded the same opportunity.

An additional solution might be to increase the costs awarded by
the Court. For instance, in representing Guy Thibault, Guy Bertrand‘
charged a relatively low fee of $73 000. Although Mr. Bertrand’s
appeal on behalf of his client was successful, Mr. Thibault was awarded

only $350 in costs. Mr. Bertrand says that 80% of similar cases are

13°See epigram, supra, Chapter 1, p. 1.
1‘1Peter H. Russell, “The Paradox of Judicial Power,” Queen’s L.J.

llzbavid Matas, “The Working of the Charter,” fianitoba Law Jourpal

XVI:2 (1986) 111, at p. 122.


stopped because of the inability of litigants to meet high fees.113
The feasibility of granting higher cost payments to successful
litigants needs further study. The Supreme Court must not be a forumgs

for the rich, it must be accessible to the average Canadian.

A conctuslon
A number of things can be done to ensure that the Supreme Court
functions smoothly and fairly as it meets the Charter challenge. The

first is to endorse the C.B.A. proposal to create a new level of court

to hear criminal appeals. This would reduce the case load of the
overburdened high court. Secondly, the Judicial Council should develop
a consistent policy towards the comments of judges while off the bench.
A Supreme Court justice’s integrity need not be at stake because he or
she has spoken out on an important issue in his or her capacity as a
public citizen. Thirdly, the provisions of Meech Lake dealing with the
Supreme Court should be clarified. In the event that the provisions‘
are not amended and the Accord is adopted, the federal government

should avoid the “straight-jacket” effect described above by keeping.

. all loop holes open. Fourthly, the notwithstanding clause should be

removed from the constitution. To ensure democracy is not thwarted or
ignored, a national referendum would best be held on the issue of s.
33. Finally, the federal and provincial governments should establish a
comprehensive court challenges financing system that allows all

citizens equal access to the Courts. These measures would help the

Charter and the Supreme Court of Canada to take a step beyond political

maturity. Clarity and justice would be concomitantly increased. In
the event that Meech Lake is scuttled and a new constitutional process
is initiated, the equivocal articles of the Accord should serve as a 1

lesson in what must be avoided‘and how to effectively deal with the

uisupreme Court’s future entrenchment.

113Michel C. Auger, “Une majorité d’affaires criminelles,” Lc

Qcgcic (14 avril 1989), p. 10.

Chapter Six

Unfinished Artwork

If human rights and harmonious relations between cultures
are forms of the beautiful, then the state is a work of art

that is never finished. ~
A F.R. Scott‘

Under the Charter, the Supreme Court’s expanded mandate has

‘provoked extensive discussion on the theoretical reorientation of

Canadian political society. Some scholars have alleged that the
judiciary has assumed power at the expense of democracy. Others have
urged that the Charter be located in the “communitarian tradition of
Canadian politics.” There have even been suggestions for the repeal of
the Charter. This chapter will evaluate the appropriateness of non-
elected officials making important policy choices, it will consider the

“communitarian tradition,” and will examine the necessity of having a

charter in the constitution.

“The people’s claim to rule does not rest upon their knowledge of

truth,” writes Michael Walzer, “they are the subjects of the law, and

if the law is to bind them as free men and women, they must also be its)

makers.”3 People often enact laws, however, which bind not only
themselves, but also minorities and individuals who may be adversely
affected by a particular enactment and whose freedom must also be
respected. For this reason the Charter gives the Supreme Court of

Canada authority.

lgcccyc on thc Constitution (Toronto: University of Toronto Press,
1977), p. ix. ‘ ‘ »

2Walzer reasons that the argument for democracy is persuasively
put “not in terms of what people know but in terms of who they are.”

See “Philosophy and Democracy,” olitical Thecry IX:3 (August 1981), p.



Some critics have alleged that the document gives inordinate power

to the least democratic arm of government. Yet, it is important to

remember that democracy does not necessarily imply that majorities have
open reign on all issues. As Charles L. Black has stated,

The premises of democracy are inarticulate and complex.
But one proposition that is not among them, if the practice
of democracy is to mean anything, is the proposition that
democracy requires that all decisions on policy be made by
public opinion from day to day, or even by those departments
that are most responsive to public opinion.3

There is more to justice than majoritarian democracy. Barry Strayer
has observed that the Canadian Constitution is not founded on the
theory of popular sovereignty. Unlike its American counterpart, the
people did not participate directly in its adoption.‘ Yet, despite
Michael Mandells unsubstantiated allegations, the Charter was never
meant to circumvent democracy. If necessary, it may even be amended by
the constitutional process. The strength of the Charter, and its
interpretation, comes in its capacity to reconsider and examine the
will of the majority as executed by the people’s elected
representatives and to hold it up to a standard of justice.
Patrick Monahan claims that:

The faulty assumption is that values like justice and
freedom can be defined in some external, elite forum and then
simply announced to a grateful, stupefied publica But the
reality is precisely the opposite. Public values cannot be
abstractly defined in some prepolitical setting and then
imported, like bottle mineral water, into the polluted
atmosphere of politics.”5

With his colleague, Allan Hutchison, Prof. Monahan has a problem with
the portrayal of the Court “as an enlightened oracle proclaiming the
gospel to the stupefied masses.” For both Patrick Monahan and Prof.

Hutchison, democracy is incompatible with judicial activism because it

3Char1es L. Black, Jr. The People and the Courts (1960), p. 179.

‘Barry L. Strayer, “Constitutional Interpretation Based on
Consent: Whose Consent and Measured When?” in Bayefsky, ed. Legal
heor Meets Legal Practice (Edmonton: Academic Printing & Publishing,

1988), p. 187.

5Monahan, Politics and the Constitution (Toronto: Carswell, 1987),
pt 4


necessarily entails “the greatest engagement by people in the greatest
possible range of communal tasks and public action.”‘

Legislatures and the public, however, are beginning to consider
the ideals of the Charter when drafting and debating legislation.
Discussions of constitutionality are best debated outside of court with
the greatest number of participants. As David Beatty and Steven
Kennett suggest, “constitutional adjudication should only occur where

the earlier conversation failed to persuade.”7
According to Prof. Mallory, the central purpose of the ghggtgg;is

“to nourish an atmosphere of civility that will act as a restraint on

the old Adam in us all.” Unlike some modern critical legal scholars,
Prof. Mallory understands that the reality of “Adam” will not be
ignored through greater majoritarian democracy. “The great value of
constitutional guarantees” said F.R. Scott, “is that the courts can use
them to check tides of opinion that can easily produce statutory
infringements of our freedoms.”5 When citizens are acting in the

Caggregate, more restraint is necessary not less. For thinkers such as

Prof. Mallory, the Charter provides “the restraint and discipline to
preserve a truly civil polity.”9

mover two hundred years ago, James Madison implied that government
was “the greatest of all reflections on human nature.”1°
Notwithstanding Prof. Monahan’s admonition for distinctly Canadian

analysis, human tendencies do not seem to transform once over the

‘A. C. Hutchison and P. Monahan, “Democracy and the Rule of Law,”

in Hutchison and Monahan, eds., The Rule of Law: Ideal or Ideology

(Toronto: Carswell, 1987), p. 118.

7D. Beatty and S. Kennett, “Striking Back: Fighting Words, Social
Protest and Political Participation in Free and Democratic Societies,”
Qang_§ar_fie1; LXVII:4 (1988), p. 575.

3F.R. Scott, Civil Liberties and Canadian Eederalism. (Toronto:

University of Toronto Press, 1959), p. 27.

‘J.R. Mallory, “The Charter of Rights and Freedoms and Canadian

Democracy,” imlin Lecture (University of Saskatchewan, Saskatoon,
Saskatchewan), 8 March 1984.

1°James Madison, “Social Foundation of Political Freedom” or
Federalist #51 in Hamilton, Jay, and Madison, The Federalist
Bapggg (New York: Washington Square Press, 1964).






forty-ninth parallel. “If Ien were angels,” wrote Madison, “no
government would be necessary. If angels were to govern. neither
external nor internal controls would be necessary.”“ If people were
flawless, the issue would not be about having a Chapter or iaproving

‘ democracy, but about the redundancy of formal governaent. Yet,

fallible people need governments, and governaents couposed of people
need to be checked by constitutions. This is not to deny the positive
role of the state, but rather to recognize that negative constraints
must be in place before positive freedols can be prouoted.

Although, it is primarily a restrictive document, the Charter has
the potential to increase positive rights. J.R. Mallory has said that
the document has “the capacity to becone a lesson in civic values to
new generations of citizens and public sen and uoaen.”11 Yet, Patrick
Monahan rejects the possibility that the public will have confidence in
what he describes as an “external, elite forum” which will ultilately
define the Charter. Prof. Nonahan explains that, in the United States,
“Ieasures of public confidence in various governmental institutions
typically rank the Supreme Court below both the President and
Congress.”13 He assures that the situation will be similar in Canada. A
However, by focusing on the Canadian experience, as Prof. Honahan
continually urges us to do, one will notice that after seven years of
generous interpretation of the Charter, the Suoreae Court of Canada
ranks well above Parliament in public approval. In a recent Gallup
Poll, Canadians were asked how much confidence they had in their
institutions. Fifty-nine per cent responded that they had a great deal
of respect for the Supreme Court, while only thirty per cent could say
the sane about the House of Canons, and only eighteen per cent about

“lbi .
“See J.R. Mallory, “The Continuing Evolution of Canadian
Constitutionalisa,” in Alan Cairns and Cynthia Williams, eds.,

Constitutionalisa, Citizenship and Society in Gangs (Toronto: U. of ‘1‘.

Press, 1985), p. 94.

Ngglitics and the Constitution, supra, note 5, p. 137.


… no-_uhg ….


political parties.“ Where then, under Patrick Monahan’s deference for
the public will, does this leave the notion that judicial review should

C be limited because people will reject an institution which makes

decisions in which majorities do not directly participate?

Furthermore, it should be noted that since 1979, confidence in the
Supreme Court of Canada has increased fro: seventy-nine to eighty-three
per cent. I t is now the second most respected institution in the
country.” Ironically, it appears that Prof. Monahan’s observations
about public confidence in the Supreme Court may apply in the United
States, but are not applicable in Canada.


Patrick Monahan has called for the interpretation of the Charter

within the “conaunitarian tradition” of Canada’s past. He goes to

great lengths to illustrate how sections of the doculent reinforce this
tradition. For instance, Prof; Monahan claias that the language
freedoms expressed in ss. 16 to 23 are neither wholly individualist nor
wholly conunitarian. According to his theory “community is both a
prerequisite for individual freedom and a corollary of it.” He
eaphasises that although “any nenber of the public” is guaranteed the
right to couunicate in English or French through s. 20, that right
only becomes operative where “there is a significant demand for
communications with and services fro: that office in such language.”“‘
other examples of comnunitarian elements in the Charter which Patrick
lonahan highlights are s. 25, which he sees as ensuring that the
traditions of aboriginal communities are not undermined, s. 27 which

“Gallup Canada Newsletter, February 9, 1989. Poll conducted
nationally in early January 1989, after the Quebec sign language

decision, and accurate within a four percentage point Iargin, 19 in 20
tines. ‘ v

1-‘-1h;g. OnlyCanada’s public schools ranked higher than the
Suprene Court.

-“ i ‘cs d the Constituti supra, note 5, p. 112.

_…1.L-_n:.4.‘1 A,_‘..,.“lA‘*‘ ‘_.fi__‘_,_



preserves and enhances Iulticultural coalunities, and s. 29 which
protects religious and language connunities.” According to Prof.
Monahan s. 1, 6(4), and l5(2)afi’irI that recognizing the rights of
some may wean suspending the rightsmof others.

However, Williaa Conklin properly rejects Prof. Monahan’s
affirmation that ss. 1 and 33 balance legislative with judicial
supremacy. For Prof. Conklin, these sections are merely minor
exceptions of paramount and permanent rights which shape an
Aristotelian conception of citizenship. “Contrary to conon opinion,”
writes Prof. Conklin, “it seems that section 33 of the Charter nay
reinforce the paramount, universal and permanent character of the
Charter’s rights.”13 Section 1 lust unavoidably allow the judiciary tQ’
review an enactment of s. 33. Otherwise, he rhetorically asks: ”why
enact the Charter of Rights in the first place?”19

Another question worth posing is just what exactly is meant by the
“conmunitarian” tradition which Prof. Monahan and others advocate?
Charles Taylor, for instance, satirically writes,

In spite of the inportance of certain crucial court
decisions in Canadian history […] Canadians appear to
Americans as inexplicably supine and long-suffering when it
comes to redress of grievances [.. .] How does one explain
this from a Canadian perspective? I ’a not quite sure myself.
South of the border, there is only one conceivable ,
explanation — we are accustomed to sitting there and taking
it without Iurmur; we lack a lively sense of our own worth
and our own rights.. Canadians are just backwards.”

In comparison to the American experience with legislative protection of
rights and freedoms, Canadians are surely not “backwards” but quite
progressive. Yet, as observed in Chapters Two and Three, there have
been instances in our history where collunitarianisl has been more of a

hinderance than an aid in preserving fundamental freedons. Consider,

17Lbid. , p. 114.

“William Conklin, Images of a Constitution (Toronto: University
of Toronto Press, 1989), p. 240.

19lbid., p. 241.

“Charles Taylor, “Alternative Futures: Legitimacy, Identity and
Alienation in Late Twentieth Century Canada,” in Constitutignalisn,

Citigenship and Society in Canada, gupra, note 12, p. 227, n. 24.


for instance, the wide-spread public support for the invocation of the
War Measures Act in 1970 with little evidence of an apprehended
insurrection. The advocates of comlunitarianism would be hard pressed
to condemn such a.popular measure despite the fact it trampled over
basic civil liberties.

Other serious questions, however, must also be asked. If the
majority, through their elected representatives, removes the rights of,
individuals or even disenfranchises a whole class of citizens as
occurred in B.C.31, what do the communitarians propose we do? Shall we
wait a decade or more until the majority changes its mind and becomes
more tolerant in its own sweet time or shall the courts be empowered to
intervene rapidly and provide remedies? 8

Those making the case for liaiting judicial review remind one of
those advocating a slow solution to the Apartheid situation in South
Africa. Surely, it would on surface seem more desirable if the
integration of blacks occurred with majority white consent, but how
much longer must South African Blacks suffer before the white majority
awakens to a coununitarian vision that includes Blacks. Similarly, how
long should Canadians wait for democracy to perfect itself before we
stop the suffering caused by its imperfections. Under Prof. Monahan’s
reasoning, the Morgentaler judgement would have to be condemned because
it did not defer to the people’s elected representatives, while the
Alberta Labour Reference decision would have to be praised because it
did not interfere with the will of the legislature. “Even a 90 or 95
per cent majority still leaves a minority at its Iercy,” says Professor
Siegan, “the purpose of the court is to stand as a shield and guardian
for the individual against the democratic process, whatever it may

Allan Hutchison and Patrick Monahan have assaulted the respect
paid to A.V. Dicey’s conception of the Rule of Law. They claim that
“attempts to characterize the Rule of Law as the butler of democracy

are false and misleading” and “further evidence of the demise of

31See Chapter 2.
23″Dialogue,” fl,B.C.L. figv. XXI:1 (1987), p. 197.



contestability as the touchstone of politics.933 However, it is
unclear what adjudicative principles these critical legal scholars
would adopt once having destroyed Dicey’s frauework.

The Charter makes a number of affirmative prolises that grant the
Supreme Court of Canada a clear role in promoting positive freedom.
Brian Slattery has recognized that the document grants duties to
legislatures and governments not only to respect rights in the negative
sense, by noneinterfering in their exercise, but also grants the: the
positive responsibility for maintaining and strengthening the
conditions which are necessary for freedon.34 By interpreting such
responsibility, the Court’s political character has become an
accomplished fact. David Beatty has written that

It is now possible to conceptualize the relationship between
the judiciary and the other two branches of government as a
cooperative venture rather than an adversarial and
antagonistic confrontation.35

Peter Russell predicts that, by the end of this century, Canadian

judges will be lore powerful within the Canadian polity than Anerican

judges are in theirs.35


Although respect for the Suprene Court along Canadians has been
rising since the late 1970’s, Daniel Latouche has lanented that the
judiciary is not as predictable as the elected branch because it
“cannot have the unity of thought and action that characterizes a


23The gule 9; Law: Ideal or Ideology, supra, note 6, p. 99.

3‘B. Slattery, “A Theory of the Charter,” 0.H.L.J. xxv:4 (1987)
701, at p. 746. Prof. Slattery draws on the ideas of Charles Taylor’s

well known “Atonisn” article in Philosophx and the Human Scienges (New
York: Caabridge University Press, 1985), pp. 187-210.

35David Beatty, Egtting the Charter to Work (Montreal: McGill-
Queen’s University Press, 1987), p. 182.

35Peter H. Russell, “The Paradox of Judicial Power,” Queen’s Law
Journal XII (1987), p. 422.



governIent.”37 So it should be. When that unity of mind leads
governments to suspend freedoms of the press or padlock establishments

on political Hhil, we are better off ignoring Professor Latouche’s

ijereniad. Better the possibility of remedy than the predictability of

Michael Mandel has urged that the Charter, and the alleged

“legalization of politics” which it brings, be Iade to wither away.

Yet, a non—ronantic and no+nonsense familiarity with Canada’s
experience with the Judicial Colnittee of the Privy Council and the
Supreme Court under the Constitution Act. 1967, will lead one to
recognize that Canadians nay ill afford to take Prof. Mandel’s advice.
Michael Mandel’s ideas are disturbing in many ways. In his latest.
book, he also implies that Chief Justice Brian Dickson is a power

“hungry individual,23 he challenges the integrity of Chief Justice Jules

Deschénes of the Quebec Superior Court,39 and he engages in an
unrelenting attempt to excoriate the entire legal profession. Yet,
nowhere in Michael Mandel’s book is their any mention of the work of
his Osgoode Hall colleague, Patrick Monahan. Perhaps this is because
even the otherwise critical Prof. Monahan has realized that the
“experience under the Charter cuts against the claims of the critics
and in favour of the proponents of an entrenched Charter.”3°
Although Prof. Mandel is skeptical of courts and legal

adjudication, Thomas Berger has rightly observed that: “Judges may not
be wiser than politicians, but they should be able to stand more firnly
against angry winds blowing in the streets.”31 While Canada has had a
record of relative tolerance, Mr. Berger well documents periods in our

history where freedoms were indeed fragi1e.g Michael Mandel’s

37Daniel Latouche, Canada and Quebec, Past agd Eutgre: An Essay

(Toronto: U. of T. Press, 1986), p. 101.

3°Michael Mandel, Ihe Charter of Rights and the Legalization of

EQlitig§_ip_Qanagg (Toronto: Wall and Thompson, 1989), p. 33.
391bi_., p. 108.

3°£olitics and the Constitgtion, supra, note 5, p. 44.,

31Thomas Berger, Fragile Freedoms (Toronto: Clarke, Irwin & Co.,
1981), p. 262., ‘ I


prescription would have been hopelessly ineffective in providing
remedies and justice in these instances.

Prof. Monahan clains that “where the interests of the 1
disadvantaged have been advanced, this has usually been acconplished

through political rather than judicial neans.”33 Before the

eConstitution Act, 1982 this nay well have been a correct

generalization, but it certainly has not been applicable since. During
the past five years, the Supreme Court of Canada has advanced the

interests of the disadvantaged where political representatives feared

to tread. ,

Although Canada has the world’s highest ratio of refugees to total
population,33 the present federal governlent has taken harsh Ieasures
to deal with this class of people. Few politicians have “stuck their
necks out” for refugees. While the federal government has been
primarily concerned with administrative convenience, through the §ipm$
decision, the Supreme Court has ensured that the Iajority will not
ignore procedural justice for the disadvantaged new arrivals.34

Refugees are not the only group in Canadian society for whom a

Charter is essential to prevent de facto exclusion from the political
process. Dale Gibson has noted that, “Canada’s treatment of native
people over the years has been an unmitigated disgrace.”35 While
political solutions have invariably resulted in deadlock, the Charter
may turn out to be a saving document for native rights.3‘ Thomas

Berger has said that judges have “an especial obligation to be

32Politics and the Constitution, supra, note 5, pp. 252—253.

33One in every 324 people in Canada is a refugee. See Thomas
Berger, “The Charter and Canadian Identity,” University of Vestern
Ontario Law Review XXIII:l (1985), p. 2.

3‘Singh et al. v. Minister of Employment and Immigration [1985] 1
S.C.R. 177.

35D. Gibson, Law of the Charter (Toronto: Carswell, 1986), p. 5.

35For a succinct discussion of native rights under the Charter see

Bruce H. Wildsnith, Aboriginal Eeoples and Section 25 of the Canadian

Charter of Rights and Freedoms (University of Saskatchewan: Native Law

Centre, 1988).

B 151

concerned about the position of minorities.”37 Political
representatives may not always be concerned with aiding those who do
not form a major voting block. For his part,.Dayid Beatty has

1 concluded that “equality can be secured through the process of judicial

review in a way it cannot in our democratic processes of politics.”33

For all its advantages and its political impact on the Supreme
Court, the Charter still appears to be a document which many would use
in different ways. Richard Devlin would use the document as a vehicle
to sneak into the heavily guarded Troy of liberalism: “1

I suggest that we seek out enancipatory trojan horses –
deviationist sub-texts – within the citadel of contemporary
jurisprudential discourse and reconstruct them to advance
more radically democratic forms of social interaction.39

Mr. Devlin would wheel in the Charter to “articulate communitarian

conceptions of speech and action as strategic counter-paradigms to

those which currently monopolize our terms of reference.”4° Such a
scheme is symptomatic of the revolutionary prescriptions for the
document. Yet, Noel Lyon has put expectations for the Charter in their
proper perspective. Prof. Lyon explains that there is a cathedral,
currently under construction in Barcelona, which will take at least one
hundred and fifty years to complete and whose completion no living
person will witness. Thus, he notes that:

Sinilarly it is not given to us or any other generation to
fulfil the promise of the Charter. The “instant annotations”
that began to appear even before the Chgrter came into force
are a bit like the booms and derricks of the modern pre-fab
construction industry. We mean to take possession of the
Qha§tg;_and complete construction of the new Constitution as

“Thomas Berger, “The Constitution, the Charter and ‘Fragile
FreedoIs,'” Canadian Eorum LXII (June/July 1982), p. 14.

33″Dialogue,” .fl.C.L. Rev. XXI:l (1987), p. 183.

39Richard.F. Devlin, “Ventriloquism and the Verbal Icon: A
Comment on Iuofessor Hogg’s ‘The Charter and American Theories of
Interpretation,’” 0.H.L.J. XXVI (1988), p. 18.


sq “‘ g

quickly as possible, as though it were an exposition site or
a.hydroelectric project.‘1

Such immediate understanding is surely not possible. We cannot just
add water to the Charter and watch it bloom. It will take time for the
Supreme Court to define its full potential. According t Willis:
Conklin we must identify the telos of the document or the consummated
end toward which it grows. It is the nationalist image which suggests
that the legislature alone ultimately interprets the text, but the
teleological image embodies an understanding whereby the judges
inevitably “share the role with the legislature.”42 To use the
expression of an American scholar, the Supreme Court’s most significant
function under the Charter may eventually be seen as “structuring a
dialogue between the state and those whose liberty its laws confine.”43

Under the Charter the Supreme Court shares a hand in the proper

functioningof government in Canada. .

For Prof. Conklin, as we have seen, the text of the Charter raises
questions of “ought” with respect to social and cultural practice,
making Ivan Rand’s Aristotelian imagefar” superior than its histcricist
or rationalist counterparts.“ According to William Conklin, the text
of the constitution requires “practice to critique theory and theory to
critique practice.”45 Prof. Conklin rightly explains that if the gap
between the theory and practice of constitutional discourse is
narrowed, lawyers wils ”finally have found a role in alleviating the
pain and suffering about them.”

Bora Laskin once said,

“Noel Lyon, “An Essay on Constitutional Interpretation,” O.H.L.J.
XXVI:1, (1988) 95, at p. 118.

“Images of a Constitution, supra, note 18, p. 266.

“Laurence Tribe, American Constitutional Law (Mineola:

Foundation Press, 1978), p. 269.

“Ima es ofa Constitution, su ra, note 18, p. 218.
45gb: ., p. 276.

– F HA5‘

~”-~=-«- m “”-an-amen-«x=……:-cxsaam-.~,.-0-as


The Constitution is as open as the minds of those called upon
to interpret it; it is as closed as their minds are closed.45

With their open minds, Bertha Wilson and Brian Dickson have gained well
deserved approval from scholars such as William Conklin. The Chief
Justice and Wilson J. are commended for breaking away from the
rationalist hold of contemporary legal culture in favour of a
teleological image of a constitution steeped in political and legal

In 1959, F.R. Scott urged that economic and cultural rights be
included in the constitution.43 Unfortunately they were not. Andrew
Petter and Allan Hutchison argue that the Charter now’embodies
classical liberal values and is therefore ineffective in dealing with
the needs of the economically disadvantaged.‘9 The Charter may one day
be improved by recognizing economic and cultural rights as the United
Nations has already done since 1948. “Freedom,” Emmett Hall was fond
of saying, “begins with breakfast.”5° 5

Future improvements notwithstanding, even as ardent a critic of

the Charter as Allan Hutchison concedes that the document might be used

as “a platform from which to develop a more caring and egalitarian

society.”51 This is the highest social, cultural, legal, and

“°Bora Laskin, “Tests for the Validity of Legislation: What’s the
‘Matter’?” U.T.L.J. XI (1955) 114, p. 127.

‘7Images of a Constitution, su ra, note 18, p. 159.

‘3Professor Scott noted even then: “We live in the age of the
positive state, not the negative state, and it is important that we
keep before us the democratic goals toward which all state power should

be aimed.” The Canadian Constitution and fluman Rights (Toronto:

Canadian Broadcasting Corporation, 1959), p. 52.

‘9Allan Hutchison and Andrew Petter, “Private Rightsl Public
Wrongs: The Liberal Lie of the Charter,” U.T.L.J. XXXVIII (1988) 279.
“The framework and tenor of the Charter reflects traditional liberal
values,” explain Hutchison and Petter, “it arms individuals with a
negative set of formal rights to repel attempts at government
interference.” At p. 283.

5°Dennis Gruending, Emmett Hall: ‘Establishment Radical (Toronto:
Macmillan of Canada, 1985), p. 169.

51Alan C. Hutchison, Dwelling on the Threshold (Toronto:
Carswell, 1988), p. 227. ,


ultimately political, challenge which the Supreme Court faces under the
Charter. The justices can play a key role in helping to create a

harmonious society. The Charter is a paint brush to be used on what

F.R. Scott referred to as “the work of art that is never finished.”53

After seven years, the Supreme Court of Canada is still finding
its proper place within the Canadian political context. “Why is it,”
asks Joel Bakan, “that labour relations, provincial Sunday closing
legislation, criminal procedure and language rights are too political
for the Court to touch, while antieconbines legislation, abortion and
the testing of cruise missiles are within the purview of judicial C
scrutiny?”53 The answer has a lot to do with the self discovery of the

In the larger context of Canadian society, academic controversy
over legitimacy is isolated and unrepresentative of the general
approval with which the Supreme Court has been met. It has been said
that the first batch of Charter cases asserted the Supreme Court’s
activism,54 while the second large group of cases demonstrated a more
balanced and cautious approach in the interpretation of rights.55

Recently, however, the Court has begun to reassert its original

52Su ra, note 1.

53Joel Bakan, “Constitutional Arguments: Interpretation and
Legitimacy in Canadian Constitutional Thought,” 0.H.L.J. XXVII:1
(1989), pp. 181.

54Cf. Marc Gold, “The Rhetoric of Rights: The Supreme Court of and
the Charter,” 0.H.L.J. XXV:2 (1987), p. 409. The early cases include
Hunter v. Southam Inc. [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd.
[1985] S.C.R. 295. ; Sin h, supra, note 34; Reference re British
Columbia Motor Vehicle Act [1985] 2 S.C.R. 486; and R. v. Oakes [1986]
1 S.C.R. 103. 9

55See Retail, Hholesale, Department Store Union, Local 580 v.
Qolphin Delivery Ltd. [1986] 2 S.C.R. 573; Edwards Books and Art v. Ihe
Queen [1987] 2 S.C.R. 713; and the infamous labour trilogy 3g§grgpgg_Eg

Public fiervice Employee Relations Act (1987), 33 D.L.R. (4th) 161;

Public Service Alliance of Canada v. The Queen in Ri ht of Canada
(1987), 38 D.L.R. (4th) 249; Retail Wholesale and De artlent Store
Union, Local 544. 496. 635. 955 v. Saskatchewan (1987), 38 D.L.R. (4th)


bo1dness.5° Christopher Manfredi has observed that, “judicial policy~
Iaking poses a difficult dilelmaz the attempt to increase judicial
capacity may ultimately destroy judicial legitimacy.”57 Yet, on the
whole, during the first seven years under the Constitution Act, 1982
the Supreme Court of Canada has rendered decision based on solid
constitutional principles and has mapped out new legal territory for
succeeding generations without engaging in the kind of controversial
activism experienced in the U.S. during the Ear: Warren period. For
the most part, the Court seems to have followed Professor Dworkin’s
warning that courts must not engage in acts of discretion motivated
solely by sympathy or moral outrage, but must rather base their
decisions on the identification of solid judicial principles.53 The
Court’s public approval rating is a testament to the legitinacy it is
currently enjoying. Canadians have more faith in their Supreme Court
than they have in Parlianent.59 P
A Charter or a Bill of Rights will not alone secure rights and

freedoms. This has been plainly evident throughout history. One need
only think of the United States prior to 1954, Canada between 1960 and
1982, or late eighteenth century France.‘“ Since 1982, however, the
Supreme Court of Canada has been ensuring that the arrival of the
Charter has not been the ineffective nocturnal landing into unknown
territory predicted by Patrick Monahan, but a real opportunity to

challenge unconstitutional injustice with hope for judicial remedy.

5‘See gorgentaler, §noling and Scott v. The Queen (1988), 44

D.L.R. 385 (S.C.C.); ord v. uebe Attorne General [1988] 2 S.C.R.

712.; glaight Comnunicationg Inc. v. Davidsop (May 4, 1989) not yet
reported; Helleg v. Attorney-General of Ontprio (August 14, 1989), not

yet reported.

570. Manfredi, “Adjudication, Policy—Making and the Supreme Court
of Canada: Lessons From the Experience of the Unites States,” C.J.P.S.
XXII:2 (June 1989), pp. 313-335.

55See Ronald Dworkin, A Matter of Principle (Cambridge, MA:

Harvard University Press, 1985).

59Ga11up Canada Newsletter, supra, note 14.

‘°The French Declaration of the Ri hts of Man, adopted by the
Constituent Assembly of.the First Republic, was demolished by the Reign
of Terror just three years after it became law.



By securing huaan rights and freedoms, the Supreme Court of Canada
has added vital colour to the artwork of the Canadian State. The
political impact of the Charter has been remarkable. In numerous
areas, the Supreme Court of Canada’s bold interpretation of rights and
freedoms is setting an example for the highest courts of the world to



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