Courts, Legislatures & Executives in the Post-Charter Era – Detailed Study Notes

Page 1 – Context & Editorial Framing

• Editors explain why Chief Justices publicly address Charter interpretation: to clarify institutional role without commenting on specific cases (to avoid creating extra-judicial precedent).
• Beverley McLachlin = first woman Chief Justice of the Supreme Court of Canada; essay illustrates judicial self-explanation in the Charter era.
• Main criticism addressed: Court allegedly acts as a “self-appointed legislature.”
• McLachlin’s rebuttal: Courts must respect constitutional laws passed by democratically accountable leaders.
• Historic Canadian examples of courts striking laws (pre-Charter):
– Persons Case (late 1920\text{s}).
– Alberta Press Case (early 1930\text{s}).
• Charter has fuelled assertion of rights & equality, but courts have not shown “undue activism”; they have not usurped legislative compromise-making.
• Patriation moment: On a cold, windy day in 1982 Queen Elizabeth II signed the Charter on Parliament Hill.
• Initial foreign apprehension (notably England).
• Global trend: Britain has since enacted its own written Bill of Rights; New Zealand has a charter; Australian High Court uses unwritten conventions to invalidate statutes.
• Universal pride in local charters (British insist theirs doesn’t automatically invalidate laws).
• Source information: Excerpted from Policy Options, Vol 20, No 5 (June 1999); speech delivered April 1999 at “Guiding the Rule of Law in the 21st Century.”

Page 2 – Rise of Constitutional Constraint Worldwide

• British model: Courts give Parliament one year to amend incompatible legislation rather than invalidating immediately.
• Prediction: “Substantial compliance” is inevitable.
• International norm: Written constitutions now constrain parliaments—becoming the standard form of rights-based democracy.
• Canada’s path was predictable given BNA Act constraints since 1867.
• Enumerated norms: democratic procedures, free expression/association, due process for deprivation of liberty, and equal treatment.
• Democracy ≠ “naked populism”; majority will must respect foundational norms underpinning legislative legitimacy.
• Pre-Charter reality:
– Legislatures were long constrained by constitutional principles.
– Courts routinely assessed validity of laws alleged ultra vires.
• Rights protection pre-Charter via interpretation and occasional nullification.

Example 1 – Interpretative Equality (Persons as Women)

• Patriarchal founding principles excluded women from most public roles.
• 1916: Emily Murphy, sworn police magistrate (Alberta), immediately faced jurisdictional challenge: only “persons” may be judges; “persons” presumed male.
• Legal status quo: “Persons for pains & punishments but not for privileges.”
• Murphy sought change: Alberta Supreme Court recognized “persons” under Judges’ Act includes women (ground-breaking).
• Federal gov’t still denied women Senate eligibility; Murphy & four women (the “Famous Five”) litigated again.
• Supreme Court of Canada ruled against them; they appealed to Judicial Committee of the Privy Council (JCPC).

Page 3 – The Persons Case & Its Impact

• JCPC victory: Word “persons” in BNA Act includes women.
• Viscount Sankey metaphor: Constitution = “living tree … capable of growth and expansion within its natural limits.”
• Two consequences:

1. Law fundamentally altered.

2. Women gained vast new political rights.
   • Early accusations of judicial activism parallel to modern Charter critiques.
   • Parliament could have reversed via statute but declined—signalling acceptance of fundamental right to participate in governance.

Example 2 – Striking Down Offending Legislation (Alberta Press)

• 1930\text{s} Social Credit (Aberhart) government passed “An Act to Ensure the Publication of Accurate News and Information” – forced pre-publication review of criticism.
• No formal bill of rights existed; only BNA Act division of powers.
• Supreme Court of Canada invalidated the Act:
– Scheme ultra vires province.
– Recognised implied constitutional guarantee of free political expression.
– Chief Justice Duff: Free speech = “breath of life for parliamentary institutions.”
• Demonstrates courts enforcing democracy-linked liberties absent explicit text.

Page 4 – Continuity & Change Brought by the Charter

• Pre-Charter courts also protected fundamental liberties in criminal law & evidence by adapting common law.
• Justice Bertha Wilson: Entrenched rights demand monitoring; judiciary is “obvious choice.”
• Micro-level Charter effects:
– Modernised criminal evidence & procedure.
– Promoted equality (race, religion, sex, age).
– Scrutiny of electoral practices (gerrymandering, polling bans).
– Re-examination of free expression limits vs. community protection.
• Macro-level: Shifted Canadians’ self-perception—rights are personal inheritance requiring active protection.
• “Culture of rights” applauded; robust public debate in media preferable to suppression or violence.

Page 5 – Charter’s Effect on Judicial Profile & The Power-Grab Debate

• Charter boosts visibility of judiciary: document explicitly empowers individuals to challenge statutes.
• Easier than Emily Murphy’s era: rights now textually proclaimed; gov’t committed to equality.
• Rights-conscious citizenry galvanises advocacy groups on all sides, increasing litigation.
• Popular critiques framed three ways:

1. “Judges executed a giant power-grab.”

2. “Unelected judges run the country.”

3. “Judges are activist.”
   • McLachlin’s responses:
   – No evidence judges desired Charter or conspired to entrench power.
   – Unelected status is deliberate to avoid conflicts inherent in elected judiciary.
   – Referee role legitimate; Sections 1 and 33 (limitation & override) preserve legislative supremacy in defined circumstances.
   • Political reality: Overriding rights is politically difficult—appropriately so.

Page 6 – What Is “Judicial Activism”?

• Statistical rebuttal: Patrick Monahan study finds Supreme Court of Canada largely conservative & deferential; few instances of rewriting statutes.
• Need to define activism; common caricatures:
– Any legal change.
– Change deemed “too much.”
– Decisions opposing one’s political stance (“political mirror”).
• Law’s tradition: Common-law incremental evolution through precedent; modification isn’t inherently activist.
• “Radical” change may be justified—e.g., Persons Case.
• Subjectivity of “radical”: one person’s sensible development ≈ another’s upheaval.
• Conservatives label liberal rights-expanding rulings activist; liberals label deferential rulings activist (Lorraine Eisenstat Weinrib argues conservative justices are the impermissible activists by ignoring Charter values).

Page 7 – Agenda-Driven Judging & The “Palm-Tree” Metaphor

• Activism accusation sometimes means result-oriented, agenda-driven judging; McLachlin rejects evidence of such bias.
• Judges must:

1. Study law & facts.

2. Hear all arguments.

3. Decide per intellect, conscience, training.
   • Consistency in rulings reflects principled reasoning, not improper agenda.
   • Historical fear: “Palm-tree justice” – colonial magistrate deciding ad hoc.
   • Antidote = decisions rooted in legal principle & constitutional role respect.

Judicial Discipline Rules

1. Ground decisions in Charter text, prior jurisprudence; change incrementally unless manifest error (Persons Case as example).

2. Recognise Charter language, though open-textured, offers interpretive guidance.

Page 8 – Respect for Legislatures & The Proper Judicial Function

• Second key rule: Show appropriate respect to Parliament/legislatures, acknowledging difficulty of balancing diverse interests.
• Law-making = delicate compromise; judicial remedies are blunt and cannot craft policy balances.
• Courts must still invalidate statutes that unjustifiably breach rights (s 52), else rights become “meaningless words on a scrap of paper.”
• Principle-based judging + institutional respect preserves separation of powers.
• Historical pattern: Courts generally defer to legislative choices; they avoid striking necessary policy compromises.
• Judicial role:
– Hear individual constitutional claims.
– Identify unconstitutional acts when proven.
– Apply Charter collectively adopted by Canadians.
• Conclusion implicit: Charter-era judiciary is neither usurping democracy nor irresponsibly activist; it performs constitutionally mandated guardianship within principled, respectful limits.

Overview of the Reading

This reading explores the role of the judiciary, particularly the Supreme Court of Canada, in interpreting and upholding the Canadian Charter of Rights and Freedoms, addressing criticisms of judicial “activism.” Chief Justice Beverley McLachlin clarifies that the Court aims to clarify its institutional role without commenting on specific cases, refuting the claim that it acts as a “self-appointed legislature.”

Historically, Canadian courts conducted judicial review even before the Charter, as evidenced by cases like the Persons Case (which recognized women as “persons” eligible for public roles) and the Alberta Press Case (which struck down a provincial law and recognized an implied guarantee of free political expression).

With the Charter’s enactment in 19821982, there was a global trend towards written constitutional constraints on parliaments. The Charter has empowered individuals, increased litigation, and fostered a “culture of rights” in Canada, promoting equality and modernizing criminal law.

Despite increased visibility, McLachlin argues there is no evidence that judges sought to usurp power. She states that their unelected status ensures impartiality, and the Charter’s Sections 11 (reasonable limits) and 3333 (override clause) preserve legislative supremacy. She debunks caricatures of “judicial activism,” citing studies showing the Court’s general deference and explaining judicial change as incremental evolution through precedent, not agenda-driven judging. She emphasizes that judicial decisions must be grounded in Charter text, jurisprudence, and respect for the legislative role, while still invalidating laws that unjustifiably breach rights to ensure constitutional principles are not “meaningless words.” The judiciary's role is to identify unconstitutional acts and apply the Charter adopted by Canadians.