Judges and the Charter Revolution – Comprehensive Notes

Page 1

• Authors & Context
  • Frederick Lee ("Ted") Morton and Rainer Knopff – Political‐science professors (University of Calgary) and long-time critics of the Supreme Court of Canada (SCC).
  • Frame their critique in The Charter Revolution and the Court Party (2000).
• Key Concept – “Court Party”
  • Coalition of actors: sympathetic judges, elite firms in the legal profession, law-school scholars, and social-issue interest groups.
  • Pursue a progressive-reform agenda through litigation rather than electoral channels.
  • Objection is less to the policy substance than to the democratic legitimacy of using courts to achieve it.
• Charter as a “Revolution”
  • Entrenchment of the Canadian Charter of Rights and Freedoms (1982) transfers ultimate policy-making power from elected legislatures to appointed judges.
  • Echoes warning by U.S. Justice Felix Frankfurter that courts sometimes speak for themselves, not for “the Constitution.”
• Charter’s Broad Wording = Judicial Choice
  • Provisions are so general that judges “choose among competing interpretations.”
  • Example – Vriend v. Alberta: SCC labels itself “trustees” of a new social contract.
  • High internal disagreement: <60\% unanimity in Charter cases during first decade; by 1998 unanimity falls to < 50\%.
• Indeterminate Questions
  • Freedom of expression vs. censorship of pornography/hate literature.
  • Section 7: Does it protect fetal life or a woman’s right to abortion?
• Barriers to Court Access Eroded
  • Standing, mootness, intervener status progressively relaxed → courts hear more abstract policy challenges.
  • SCC evolves from dispute adjudicator to “constitutional oracle.”

Page 2

• Denial of Judicial Discretion
  • Democratic unease pushes judges to minimize acknowledgement of their own power.
• Three Claimed Constraints & Authors’ Rebuttals
  1. Charter embodies obvious “core values.”
  2. Some outcomes are compelled by explicit text.
  3. Unclear clauses can be guided by original intent/traditional understanding.
  • Morton & Knopff: none meaningfully restrain discretion; original intent is explicitly rejected by legal elites.
• Core Values vs. Peripheral Meanings
  • Core—e.g., banning a theocracy, prohibiting cruel punishment—already secured by pre-1982 common/statutory law and social consensus.
  • Live litigation revolves around “outer-limits” or second-order questions (e.g., drug-use exemptions for religious rites).
• Charter Rights as Political Weapons
  • Litigants cast opponents as tyrannical, inflaming discourse instead of moderating it.
• Summary
  • Indeterminacy occurs at contested periphery, not settled core.

Page 3

• Textual Innovation – Rare & Insufficient Explanation
  • Section 24(2) – Creates an exclusionary‐evidence rule; still heavily shaped by judicial interpretation.
  • Section 15 – Adds “equality under the law” & “equal benefit of the law” to overrule Lavell & Bliss (Bill-of-Rights cases).
  • Section 10(b) – Adds police duty to inform detainees of right to counsel (overrules Hogan v. R.).
  • Section 23 – Language-minority education rights.
  • Despite these, most Charter provisions merely constitutionalize long-standing freedoms.
• Judicially Driven Change
  • Major doctrinal shifts (e.g., right to silence) appear without textual warrant.
  • SCC extends right to silence to blood samples & line-ups—beyond U.S. Miranda.
• Exclusionary Rule Expansion
  • Charter text: courts exclude evidence only if admission would bring administration of justice into disrepute.
  • R. v. Collins et al.: SCC lowers threshold; exclusion rate climbs to 45\% overall and 60\% for statements.
  • 1996 – Federal A-G petitions to overrule Collins; SCC refuses and extends rule to involuntary DNA.
• Equality Rights Drift
  • Although text says “every individual,” SCC centers analysis on “disadvantaged groups.”
• Bottom Line
  • Key doctrinal landmarks originate in judicial creativity, not Charter wording.

Page 4

• Original Intent & Traditional Understanding Dismissed
  • BC Motor Vehicle Reference: Documentary evidence supports a “procedural‐only” reading of section 7, yet Justice Lamer opts for substantive interpretation.
  • Lamer brands framers’ intent “inherently unreliable,” advocates the “living tree” doctrine for evolving meanings.
• Purposive Analysis
  • Judges identify broad purposes of rights by referencing “evolving traditions,” not framers’ aims.
  • Selective abstraction enables almost any policy to be characterized as serving Charter purposes.
  • Peter Russell: Purposive method “may not yield the same results for all who apply it.”
• Practical Illustration – Morgentaler (Abortion)
  • Lamer claims personal opposition to abortion but bases ruling on public-opinion split (≈50–50) rather than textual grounds.
  • Indicates judges “keep in sync with society,” yet polling actually shows stable pluralities favor compromise.
• Distinguishing Charter Discretion
  • Unlike common-law revision, Charter rulings are entrenched: legislatures’ ability to reverse is limited (s. 33 notwithstanding).
  • Lamer himself concedes courts have been drawn into politics “to a degree unknown prior to 1982.”

Page 5

• Oracularism & Procedural Revolution
  • Court redefines itself from dispute resolver to nationwide constitutional policymaker.
  • Substantive expansion is matched by procedural change—loosening traditional filters on litigation.
• Standing
  • Pre-Charter: plaintiffs needed personal stake.
  • SCC grants standing to Joe Borowski (anti-abortion) despite no direct harm—signals shift.
• Mootness
  • Previously, resolved disputes or deceased parties ended jurisdiction.
  • SCC chips away; e.g., M. v. H. decision despite couple’s reconciliation.
• Intervener Status
  • Historically rare; post-1986 “open-door” policy: intervener acceptance rate jumps from 20\% (1985) to 95\% (1987), remaining 80–90\% thereafter.
  • Interest groups (LEAF, CCLA, etc.) deploy U.S.-style strategic litigation.
  • Non-government intervener count: 17 in first three Charter years → 100+ by 1990 → 229 by 1993.
• Judicially Considered Obiter Dicta
  • 1980 ruling: SCC declares its own considered obiter binding on lower courts.
  • Askov precedent: SCC remarks (6–8-month trial delay) triggers >40{,}000 stayed/dismissed Ontario cases.

Page 6

• Parallel with U.S. “Warren Court”
  • Just as U.S. Supreme Court in 1960s dismantled standing/mootness barriers to spearhead civil-rights revolution, Canadian SCC follows similar path a generation later.
  • Reflects an “institutional psychology” of active partnership in policy transformation (Laurence Tribe).

Conclusion / Synthesis

• Charter as Occasion, Not Sole Cause
  • Text provides opportunity; judicial self-perception supplies momentum.
• Discretion Is Real & Often Hidden
  • Judges publicly claim neutrality while privately acknowledging responsiveness to public mood or policy goals.
• Institutional Retooling
  • Adjusted rules of evidence, relevance, standing, mootness, intervention.
  • Court now serves as a quasi-legislative, continuous overseer: a “third chamber.”
• Democratic Implications
  • Nine unelected justices wield greater day-to-day policy influence than most elected MPs.
  • Raises questions about accountability, separation of powers, and legitimacy within Canadian constitutional democracy.
• Real-World Relevance
  • Virtually every major governmental initiative is now subject to systematic Charter testing.
  • Interest-group litigation has become a central avenue for policy advancement or obstruction.
• Ethical & Philosophical Stakes
  • Debate pits substantive justice (protecting rights of minorities, marginalized) against procedural democracy (rule by elected representatives).
  • Highlights enduring tension between constitutionalism and popular sovereignty.