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THE SUPREME COURT OF CANADA IN THE AGE
OF RIGHTS: CONSTITUTIONAL DEMOCRACY,
THE RULE OF LAW AND FUNDAMENTAL
RIGHTS UNDER CANADA'S CONSTITUTION

Lorraine E. Weinrib*
Toronto

In the aftermathof the Second World War,democraticnationshave embracedjudicial


protectionof individualautonomy, equalityand respectforhuman dignity. While each
nation's arrangements have distinctive features, there is a discernible model of
postwarrightsprotection.This essay traces the role ofthe Supreme Courtin Canada's
transformationinto such a postwar, rights-protectingpolity both before and after the
adoptionof the Charterin 1982. Justafterthe war,the Supreme Courttook the intiative
to protectrightsjust as Canadareachedpoliticalindependence andthe Courtbecame
Canada'shighest appellatecourt.Facingchallengesto the most basic assumptionsof
liberaldemocracy, some of the judges inferredprotectionfor fundamentalfreedoms
from the structure of Canada'sparliamentarydemocracy, the federal-provincial
division of powers and the heritage of the flexible, unwritten British constitution.
Although the Court ultimately abandonedthis approach, it recently returned to this
legacy in importantreference cases thatdeliberatedupon the placeofdirectdemocracy
and the independence of the courts in our constitutionalorder.This essay compares
the Court's understanding of its role in protecting rights under this traditional
approachas well as under the Charter,to the postwar model of rights-protection.It
notes that the Courthas on occasion departedfrom this model to resolve a perceived
tension between vigilant judicial protection of rights and the prerogatives of the
executive and the legislature in our system of government. The author argues that
Canada'sadaptationof the postwar model to the Canadiancontext resolves that
tension without prompting such departures. Support for this argument rests on a
number of considerations. These include the conceptual substructure of unwritten
constitutionalnorms, the institutionalstructureandremedialpurposesof the Charter,
and the common law's affinity to the postwarmodel of rights-protection.

Au lendemain de la Seconde Guerre Mondiale, les nations democratiques ont


embrassg les politiques de protection de l'autonomie individuelle, d'ggalite et de
respectde la dignitj hunaine.Bien que les dispositionsde chaque nation comportent
desparticularitis,onpeutidentifierun modele 'aprksguerredeprotectiondes droits.
Cet articleretracele role de la Coursuprome dans la transformationdu Canadapar
cette politique d'aprks guerre de protection des droits, aussi bien avant qu'apr~s
l'adoption de la Charte en 1982. Juste aprks la guerre la Cour supreme a pris
l'initiative de prot~ger les droits au moment meme ot le Canada atteignait
l'indpendancepolitique et que la Cour devenait laplus haute cour d'appel au pays.
Faisantface t une remise en question des postulats les plus fondamentaux de la
democratieliberale,certainsjugesont deduit laprotectiondes libertisfondamentales
de la structurede la democratieparlementairecanadienne,du partagedes pouvoirs
entre le provincialet lefidral,et de I'hiritagede la constitution britannique,souple

* Lorraine E. Weinrib, of the Faculty of Law, University of Toronto, Toronto, Ontario.


THE CANADIAN BAR REVIEW [Vol.80

et non 9crite. Bien que la Cour ait ultimement abandonng cette approche, elle est
revenue a cet heritage dans des affaires importantesde renvoiportantsur laplace
de la dedmocratie directe et sur l'indipendance des tribunaux dans notre ordre
constitutionnel. Cet essai compare la comprihension que la Cour a de son role
dans la protection des droits, en vertu de cette approche traditionelleet en vertu
de la Charte,avec le modele d'aprks guerre deprotectiondes droits.11 relkve qu 'i
l'occasion la Cour s'est 9cartie de ce modele pour r~soudre le problme de la
tension qu'elle avaitpergue entre une protectionjudiciairedes droitsfaiteavec
vigilance et les prdrogatives de l'ex~cutif et du lMgislatif dans notre systkme de
gouvernement. L'auteursoutient que l'adaptationdu modele d'apr~s guerre au
contexte canadien r~soutcette tension sans pour autantsacrifierla protectiondes
droits. Cette these s 'appuiesurun certainnombre de considerations.Parmicelles-
ci il y a la sous-structureconceptuelle de normes constitutionnellesnon ecrites, la
structure institutionnellede la Charteet ses objectifs de remddiera desprobl~mes,
ainsi que les affinit~s de la common law avec le modele d'aprks guerre de
protection des droits.

I. The Age of Rights: Principlesand Transitions ...................... 701


II. The PostwarModel of the ConstitutionalState ..................... 704
M. The Supreme Court and the "Implied Bill of Rights" ................ 710
IV. The Charter:Legal Structure and InstitutionalRoles ................ 720
V. The Supreme Court and the Charter.............................. 734
VI. Conclusion ................................................. 743

"The development of the constitutional state can be understood as an open


sequence of experience-guidedprecautionarymeasures againstthe overpowering
ofthe legal system by illegitimatepower relationsthatcontradictits normative self-
understanding."'
"...'true' democracy recognizes the power of the constitution - fruit of the
constituentauthority - to entrench the fundamental human rights and the basic
values of the system againstthe power of the majority. Such limitationof majority
2
rule does not impairdemocracy but constitutes its full realization."
"That in the questionsfacingcourtswe must exclude theory hasnever been the rule
and never can be the rule: theory is simply the completion of ideas."3

I J. Habermas, Between Factsand Norms (Cambridge, Mass: MIT Press, 1996) at 39.
2 UnitedMizrahiBank Ltd. v. Migdal Cooperative Village (1995), P.D. 221 at para.
47 per Justice Aharon Barak, President, Supreme Court of Israel.
3 I.C. Rand, "The Role of an Independent Judiciary in Preserving Freedom" (1951)
9 U.T.L.J.1 at 12.
20011 The Supreme Court of Canada in the Age of Rights

I. The Age of Rights: Principlesin Transition


We live in the age of rights. 4 In the aftermath of the Second World War,
conmitment to the principles embodied in the modern idea of human rights has
intensified in the West, although the record of achievement is undeniably
blemished. Liberty, equality and respect for human dignity have come to enjoy
unprecedented support as abstract principles. Nonetheless, no single magic
formula protects these principles in all contexts. It falls to each nation to make
and re-make its own arrangements, either alone or in concert with other nation
states:

The fundamental problem concerning5 human rights today is not so much how to
justify them, but how to protect them.
These arrangements build upon several fundamental tenets of constitutional
government. The first is an understanding of democracy as the sovereignty of
the people, not of the legislature in the abstract or as a particular, temporarily
elected, law-making body. It is this meaning of democracy that legitimates the
exercise of state power over all members of the postwar nation state.6 The
second is that government power is not unlimited. It operates under the
discipline of the rule of law, bolstering the idea that liberty prevails unless and
until the law-making machinery has taken the trouble to stipulate otherwise. To
these, a third "experience guided precautionary measure" has been added in the
postwar period, that the constitutional state must directly protect fundamental
rights and freedoms. 7 This third tenet reflects the painfully learned lesson of the
twentieth century. Generally accepted practices of democratic government
reliably secure neither the long-term continuity of democracy, nor the optimal
operation of the rule of law, nor the entitlements to liberty, equality and respect
for dignity now considered fundamental within the postwar, pluralist, egalitarian,
and often divided state. The postwar redesign of the democratic state has as its
daunting aspiration the correction of these failings.
The postwar agenda is an ambitious undertaking. It responds to dramatic
changes in the nation state. The nation state is no longer the state of the nation:

today all of us live in pluralist societies ...


... [in which] the majority culture must give
up its historical prerogative to define the official terms of the generalized political
culture that is to be shared by all citizens, regardless of whence they come and how

4 C.N. Tate & T. Valinder, eds., The Global Expansion of Judicial Power (New
York: New York University Press, 1995), C.R. Epp, The Rights Revolution: Lawyers,
Activists, and Supreme Courts in Comparative Perspective (Chicago: University of
Chicago Press, 1998), M. Shapiro and A. Stone, "The New Constitutional Politics of
Europe" (1994) 26 Comparative Political Studies 397.
5 N. Bobbio, The Age of Rights (Cambridge: Polity Press, 1996) at 10.
6 S.Freedman, "Constitutional Democracy and the Legitimacy of Judicial Review"
(1990-91) 9 Law and Philosophy 327. See R.L. Brown, "Accountability, Liberty, and the
Constitution (1998) 98 Colum. L. Rev. 531 for the origins of the counter-majoritarian
dilemma in the U.S. context.
7 Habernas, supra note 1.
LA REVUE DU BARREAU CANADIEN [Vol.80

they live..... Such generalized political cultures have as reference national constitutions;
each of them contextualizes the same universalist principles, popular sovereignty and
human rights, differently from the perspective of their own particular history. On this8
basis nationalism can be replaced by what one might call constitutional patriotism.
Democracy in the multicultural, constitutional state can no longer amount to the
election of a temporary, all-powerful government, sustained by and sustaining
the cultural preferences of the historical majority whose values reflect a shared
past, culture and aspirations. Elected representatives must cater to a more
diverse public in terms of ethnicity, religion and race, for example. The increase
in actual diversity has rendered the modem state more pluralistic and secular.
The public sphere is no longer the privileged preserve of the white, male,
Christian, property-owning, heterosexual, paterfamilias.
In the postwar constitutional state, the changes that precipitated new
appreciation of the complexity of political representation have also transformed
our understanding of political accountability. When a diverse population of free
and equal citizens rule themselves through the instrument of elected government,
they do not vest their representatives with paramount authority over their
fundamental rights and freedoms between elections. This would make no sense
in the light of the diversity and pluralism of the modem nation state. It makes
even less sense given the post war lesson that civil society can abandon its
"normative presuppositions" - even descend to barbarism - in the face of real,
9
imagined or fabricated dangers.
The need for added accountability is intensified by the fact that modem
government has extensive regulatory reach, affecting our lives at every turn,
permeating its most private corners. Accountability must be constant when so
many rules and programs of benefits affect a diverse population with multifaceted
values. Accordingly, governments are made to do their work under the discipline
of delineated, enforceable limits on power. The core idea is that governments
lack authority, even in the short term of an electoral mandate, to alter the basic
structure of the constitutional state, which includes its democratic framework,
the rule of law and respect for fundafnental rights and freedoms. The judiciary
acts as guardian of that basic structure.
There is no single blueprint for the postwar constitutional state, nor has
there been a uniform mode of transition to its strictures. A number of patterns
have emerged. Many countries have subscribed to international, post-war,
rights-protecting instruments that strongly influence the development of the
domestic legal system, especially when these instruments apply directly to
domestic law or provide recourse for citizens to international tribunals. Some
of the defeated nations adopted new constitutions in the immediate aftermath of
the War. Other countries did so later, in response to other influences, such as
change of regime or civil war. These modem constitutions, the products of

8 J. Habermas, 'The European Nation State: Its Achievements and Its Limitations.
On the Past and Future of Sovereignty and Citizenship" (1996) 9 Ratio Juris 125 at 133
[emphasis in original].
9 Habermas, supra note 1.
2001] The Supreme Court of Canadain the Age of Rights

intensive theoretical and comparative study, establish democratic institutions,


the rule of law and a substantive commitment to fundamental rights suited to the
particular national context and history. Absent the opportunities created by such
exceptional circumstances, an alternative mode of constitutional reform is
discernible. The judiciary has taken a leadership role in effecting a more
gradual, organic transformation to the constitutional state in some countries by
infusing the postwar norms into statutory interpretation and development of the
common law, both public and private. Some courts have gone further,
reformulating unwritten constitutional traditions and reinterpreting old
constitutional instruments in light of the fundamental tenets of post war
constitutionalism.
The potential that rights-protection has for legitimation is well established
at both the national and international levels. The postwar "global human rights
constituency" is so strong that "no state and no developed political entity...
could afford to eschew its language or its values".' 0 Such legitimation serves
as a strong force for integration in otherwise diverse political systems, whether
multilateral or federal in structure. A common sense of citizenship can build
upon shared understandings of fundamental rights and freedoms, even when
other cultural and linguistic traditions diverge. 11
Canada's response to the age of rights has been unusually complex, engaging
almost every possibility. This paper traces this evolving process, focussing on the
vital role played by the Supreme Court of Canada. Parts II and I relate the pre-
Charterpartof this story. In Part I, I present the postwar model and briefly outline
the judicial role it demands. I then consider, in Part Ill, the Supreme Court of
Canada's first major attempt to identify the fundamental tenets of postwar liberal
democracy as the principles animating the Canadian Constitution. Pressed to
review extraordinary encroachments on those tenets by legislatures and the
executive, a number of judges began to re-examine their own constitutional
responsibilities. They elaborated a sophisticated theory of Canadian constitutional
law, weaving together its written and unwritten strands to mandate a strong judicial
duty to protect these basic tenets from erosion by any branch of government.
Although ultimately rejected in the context in which it was advanced, this theory
did not disappear. It re-emerged as the cornerstone of the written Constitution with
the adoption of the Charterof Rights and Freedoms.
The remainder of the paper deals with the Supreme Court and the Charter.In
Part IV, I describe how the Charter'slegal structure and institutional roles establish
in Canada, by design, the basic tenets of the post war constitutional state. In Part
V, I make the claim that the Supreme Court has not yet effected the full transition

'0 Grdinne de Bdrca, "The Language of Rights and European Integration" in J. Shaw
& G. More, eds., New Legal Dynamics of European Union (Oxford: Clarendon Press,
1995) at 40-1. See also L. Henkin, The Age of Rights (New York: Columbia University
Press, 1990).
11A. Cairns, Charter Versus Federalism: The Dilemmas of ConstitutionalReform
(Kingston: McGill-Queen's University Press, 1992) 1.
THE CANADIAN BAR REVIEW [Vol.80

to the constitutional state as required by the Charter.While many of its judgments


establish and develop these tenets, others occasionally display a lack of confidence
in the mode of judicial review that they mandate. This tendency has produced
marked instability and variation in the development of important legal doctrines.
It threatens to undermine the remedial purpose of the Charter- to establish a
postwar, constitutional state.
I conclude by noting that the Charterdoes not, as some judges may fear, vest
in the courts a political prerogative snatched from elected representatives. Nor does
it give the judges free reign to delineate a more deferential review function when
the usual approach would undermine the social mores established by the historical
cultural majority. Rather, it commits the judicial authority to ensure that every
organ of state adheres to democracy as the sovereignty of the people, to the rule of
law, and to respect for fundamental rights and freedoms as the highest constitutional
norms. The judicial role it expressly mandates, in effect, revives the approach
developed under the short-lived "implied bill of rights", which marked the Court's
first attempt to bring the Canadian Constitution within the postwar model. While
the members of the Court who supported this approach were ahead of their time in
the aftermath of the War, the current members of the Court can take comfort in the
fact that the courts of the common law world have now caught up. The mode of
judicial analysis stipulated in the postwar model now flourishes in the common law
world, under the auspices of international human rights-protecting instruments,
new constitutions, as well as the development of the common law itself. The full
transition to the Charter'sregime of postwar constitutionalism depends on the
Supreme Court's willingness to regard the postwar model that is embedded in the
Charternot as a foreign graft or institutional anomaly, but as the maturation of
our constitutional heritage.

I. The PostwarModel

The postwar model of liberal democracy rejects a simple majoritarian idea of


democratic rule, respects the rule of law and offers effective protection for
liberty, equality and human dignity. The rise of totalitarian regimes and the
resulting war demonstrated, in far too many contexts, the fragility of democratic
institutions and the inadequacy of the rule of law. Unspeakable atrocities,
breaches of the most basic norms of civil society, were not merely the product
of lawlessness; they were also the products of accepted processes endorsed by
judges. 12 Rights guarantees have emerged as the favoured instrument by which
to protect the basic structure of constitutional democracy. These guarantees
establish new institutional roles that have the effect of reconstructing the
relationship between the state and the individual as citizen and right holder. By
extension, they also establish the way in which groups function within a society

12L. Lustgarten, '"Taking Nazi Law Seriously" (2000) 63 Mod. L.Rev. 1; L.E.
Weinrib, "Sustaining Constitutional Values: The Schreiner Legacy" (1998) 14 So. Af. J.
of Human Rights 351.
20011 The Supreme Court of Canada in the Age of Rights

built on rights and freedoms that respects history, identity and faith. In the fully
developed model, the guarantees empower the right holder to challenge the
exercise of state power, including legislation, in the courts.
The doctrine of legislative sovereignty, which precludes judicial review of
statute, is not, in operation, necessarily inimical to the objectives of the
constitutional state. It may work well under optimal conditions, particularly in
a homogeneous nation state. However, it leaves the fundamental rights and
freedoms necessary to the constitutional state dependent on the good will, self-
restraint and sensitivity of majoritarian, temporarily elected governments.
These rights and freedoms are thus viewed, not as legally entrenched entitlements
that any citizen can insist upon, but as privileges contingent on the continuing
endorsement of the majority.
Although the postwar constitutional state does not render these rights and
freedoms absolute, it does, in one way or another, put them beyond the reach of
the ordinary political process. Given the gravity of the harm that may follow the
malfunction of representative democracy, that process can no longer enjoy
supremacy. In the constitutional state, the ordinary legislative process does not
lose its capacity to do what it does well. It remains the primary engine of public
policy within its mandate. But it no longer enjoys paramountcy over the basic
structure of the constitutional order, including the democratic function itself, the
rule of law and fundamental rights and freedoms.
In the fully developed model of constitutional democracy, the fundamental
rights and freedoms enjoy the status of higher law under a constitutional bill of
rights. Their enforcement falls to the independent judiciary, either the general
courts of law or special constitutional courts. The judges review the legislative
and administrative process, indeed every exercise of state power, for fidelity to
these constitutional norms. They also develop the common law, in its private
and public forms, in line with constitutional values implicit in the scheme of
guaranteed rights and freedoms. 1 3 The courts possess extensive remedial
authority, including power to invalidate legislation, in whole or in part. In
addition, constitutional amendment that undermines the fundamental tenets of
liberal democracy, if possible, will require extensive consensus. There may be
special constraints imposed on the substantive reach or the procedural
requirements for amendment having this effect.
Unlike older bills of rights, postwar rights-protecting instruments do not
merely negate state power, leaving to the judiciary the task of elaborating their
scope and limits of generally formulated entitlements. Those who designed the
later instruments had the opportunity to improve upon the early efforts and to
adapt to changes in government responsibility. In particular, they had in mind
the development of the active, regulatory, welfare state as well as increased
diversity and pluralism. The later instruments thus provide more direction as to

13 See Justice A. Barak, "Constitutional Human Rights and Private Law", (1996) 3
Review of Constitutional Studies 218 and L.E. Weinrib & E.J. Weinrib, "Constitutional
Values and Private Law in Canada" [forthcoming].
LA REVUE DU BARREAU CANADIEN [Vol.80

the values and principles on which the rights stand and the basis on which they may
be limited. One of the most significant developments is that postwar constitutions
avoid the possibility that honouring the specific guarantee might, in a particular
context, undermine the constitutional structure as a whole. They expressly permit
limitations on stipulated grounds, giving flexible strength to these instruments.
Limitation clauses testify to the non-absolute nature of the specific guaranteed
rights and freedoms without negating the abstract principles that inform the rights-
protecting instrument in its entirety. They allow the rights-protecting instrument to
function as a coherent scheme of rights protection, in whichjudges constantly work
to adjust the enumerated rights to one another and to the broader principles that
underlie them all. The system sustains the normative connection between the right
and the limitation by offering the state the opportunity to justify - not merely to
explain or to excuse - any encroachment in a court of law on the basis of these
principles when challenged by arightholder. The requisite mode ofjustification has
two steps, the first formal and the second substantive.
First, the state must establish that its impugned policy meets formal standards
of legality. 14 If the policy is in statutory form, this requirement ensures that the
measure has withstood the rigours of the legislative process-rigours that in the
Canadian context usually include executive formulation, parliamentary process
and deliberation, and perhaps public debate. Encroachments on the guarantees
must take the form of specific, concrete and clear directives by those who carry
democratic responsibility. An intention to encroach will not be inferred from
general language. If the policy is formulated in a common law rule, the measure will
be the creation of the principled reasoning of the common law courts. The formal
legality structure offers assurance that encroachments on rights stand as the product
of apublic deliberative process thatincludes some deliberation and a formalrecord.
From the standpoint of affected holders of the encroached right, material is
available for the assessment of their constitutional position. From the standpoint of
the state, public authorities are disciplined to put their policies through a proper law-
creation process. The result is that, far from transferring political power from
legislatures to courts (as critics of judicial review allege), the constitution through
its legality stricture channels policy-making into the legislative arena.
If the encroachment is found to satisfy the formal standard of legality, the
limitation analysis can then move to the next stage, when the state has the
opportunity to justify its encroachment on substantive grounds. If, however, the
legality stricture remains unsatisfied, the matter should end, giving the state no
opportunity to make justification arguments. The legality stricture imposes a
general discipline on the work of government. In the law-making process, it ensures
that constitutional policy is worked out in more detail, which may lead to more

14M. Delmas-Marty, "The Richness of Underlying Legal Reasoning", in M. Delmas-


Marty, ed., The European Conventionfor the Protectionof Human Rights: International
Protection versus National Restrictions (Dordrecht: Martinus Nijhoff, 1992) 319 at 323-
24: accessibility (to the citizen), sufficient precision, and clarity (so that the citizen can
foresee the consequences ofgiven action) are the "three qualitative requirements" necessary
for democratic legality.
2001] The Supreme Court of Canadain the Age of Rights

extensive research and consideration of a wider range of affected constituencies.


In the law-application process, it ensures that constitutional rights do not lie in the
hands of officials who work behind the scenes with little or no transparency,
expertise in rights-protection, or incentive to respect rights and freedoms in their
day to day work. In the litigation context, the legality stricture should ensure that
governments do not defend enactments or state action alleged to infringe on higher
law guarantees if the impugned measures have not passed through the rigours of
the stipulated processes. They should either undertake to bring the measure into the
proper legal form or repudiate it.
Where the legality stricture is satisfied, consideration moves to the second and
substantive stage. At this stage the state has the burden of demonstrating that the
encroachment on the right is consistent with the principled structure of the rights-
protecting system considered as a whole.15 Thus, the specific rights guaranteed by
the constitution are controlling unless the state can show that an encroachment is
justified by its consonance with systemic constitutional values. To this end, the
postwar model has developed a complex set of doctrinal tests for the justification
oflimits on guaranteed rights. These doctrines, collectively known as proportionality
analysis, call for consideration of the consistency of the impugned measure with
constitutional norms, of the connection between its means and ends, the necessity
for the encroachment, and of its impact on the guarantees in question. 6 The
proportionality analysis thus imposes on the state a sequence of exacting tests to
ensure that a limitation is consistent with the entire scheme of constitutional rights-
protection in which the specific guarantee participates. Proportionality analysis
requires an essentially adjudicative, not legislative, determination. In performing
this task, courts do not assess the wisdom of the impugned measure or second-
17
guess a political compromise or construct "major guidelines for society".
Rather, independentjudges with expertise in the law, operating in an adversary
context and at the initiative of the rights-holders most affected, consider
15 See e.g. The Syracusa Principles on the Limitation and Derogation Provisions in
the International Covenant on Civil and Political Rights, E/CN.4/1985/4 Annex, nos. 15-
18; R. Marcic, "Duties and Limitations Upon Rights" [1968] International Commission
Jurists 59 at 61; J. Rawls, PoliticalLiberalism (New York: Columbia University Press,
1993) at 358-59; A.C. Kiss, "Permissible Limitations on Rights" in L. Henkin, ed., The
InternationalBill of Rights: The Covenant on Civil and Political Rights (New York:
Columbia University Press, 1981) 290 at 310; P. Sieghart, The InternationalLaw of Human
Rights (Oxford: Clarendon Press, 1983) at 88, 91.
16 The proportionality principle has become the central analytic feature in judicial
review of rights-protecting instruments. See E. Ellis; The Principleof Proportionalityin
the Laws of Europe (Oxford: Hart Publishing, 1999); N. Emiliou, The Principle of
Proportionalityin EuropeanLaw: A ComparativeStudy (London: KluwerLaw International,
1996); G. de Btirca, "Proportionality and Wednesbury Unreasonableness: The Influence of
European Legal Concepts on U.K. Law" (1997) 3 European Public Law 561"; J. Schwarze,
EuropeanAdministrative Law (London: Sweet & Maxwell, 1992) at c. 5.
17 E. Smith, "Cross-fertilisation of Concepts in Constitutional Law" in J. Beatson &
T. Tridimas, New Directionsin EuropeanPublicLaw (Oxford: Hart Publishing, 1998) 101
at 120-22 and A. Bickel, The Least DangerousBranch: The Supreme Courtat the Bar of
Politics (Indianapolis: Bobbs-Merrill, 1962) at 24-26, making the distinction between
principle and policy.
THE CANADIAN BAR REVIEW [Vol.80

principled arguments of justification concerning an encroachment's overall


consistency with the constitutional norms to which society is already committed.
In addition to and apart from principled limitation, the postwar model also
allows for temporary legislative abrogation of a right under specified conditions.
These conditions include compliance with formal strictures in the law-making
process, as in the Canadian and Israeli legislative override provisions, or proof
that the measure is a response to a (continuing) emergency, as in the derogation
clauses included in many international and domestic rights-protecting systems.
Such abrogation is the exercise of a political power and does not depend on
being capable of justification as a matter of legal analysis. However, because
abrogation entails a temporary departure from the constitutional values that
normally obtain, its exercise is intended to be exceptional. Moreover, because
the abrogation power is exceptional and not plenary, the state must legitimate
its exercise by demonstrating compliance with the constitutionally prescribed
process and/or conditions either in the public arena or in a court of law. For these
reasons, the possibility of abrogation does not reintroduce legislative supremacy
through the back door.
The postwar model thus restricts the doctrine of legislative sovereignty
with a complex system of government that requires courts to carry out legal
functions while leaving legislatures free to carry out political ones. Under this
model government powers are limited by a guarantee of rights and freedoms that
crystallize the foundational principles of the state as a constitutional democracy.
The model permits principled and measured limitation of these guarantees,
when the state satisfies the formal strictures of legality and the substantive
requirements of justification. It also permits temporary abrogation, upon
compliance with prescribed formal or empirical conditions. The result is that
temporarily elected governments cannot use the ordinary political processes to
transform the basic constitutional structure. That power is reserved to the more
demanding political process stipulated for constitutional amendment, which8 also
remains subject to judicial review to assure lawful exercise of state power.'
The postwar model thus contracts the historical prerogatives of established
cultural majorities formerly protected by the doctrine of legislative sovereignty.
It makes room for protection of fundamental rights and freedoms by giving
these entitlements higher law status enforced by thejudiciary. Courts take on the
task of explicating the content of the guaranteed rights and freedoms. They must
also assess compliance with the legality stricture, and if it is satisfied, apply the
proportionality analysis to the state's arguments as to justification of the
measures that limit any of the guaranteed rights and freedoms. In addition, they

18 In the Secession Reference, [1998] 2 S.C.R. 217, the Supreme Court of Canada
ruled that negotiations for constitutional amendment must comply with the following
constitutional principles: democracy, federalism, the rule of law, and the rights of
minorities. The constraints on the exercise of the constituent authority are more severe in
the German constitutional system, where some provisions are not subject to amendment.
More generally, international obligations may also apply to restrict the range of possible
amendments.
2001] The Supreme Court of Canada in the Age of Rights

oversee compliance with the substantial and formal strictures applicable to


temporary abrogation and amendment.
These new responsibilities, however, do not involve the transfer to courts
of law of political powers taken from legislatures. The postwar model does not
transfer political power so much as transform it. This truth obtains both from the
political and from the juridical perspective.
On the one hand, from the political perspective, the law-making authority
that characterized the system of legislative sovereignty no longer exists. Under
the postwar model neither courts nor legislatures have the power to make laws
free from the formal and substantive constitutional norms that underpin
constitutional democracy. Every exercise of state power must conform to the
strictures of the rights-protecting system. Nonetheless, although the legislatures
are no longer considered supreme, they continue to exercise the broadest policy
making function within the state. They are constrained of course by the need
either to respect the guaranteed rights or to be capable of, first, demonstrating
that the impugned measure has been prescribed by law, and, second, justifying
any encroachment when rightholders bring challenges to courts of law.
On the other hand, from the judicial perspective, the judiciary does not
acquire the lost legislative power. Courts do not make policy or law in the sense
that sovereign legislatures did. Rather, in cases that they can neither invite nor
refuse, courts evaluate claims that constitutional norms have been breached.
Within the confines of defined legal reasoning that reflects the primacy of the
rights and freedoms of the citizen against the state, judges develop and apply
constitutional norms to concrete questions. Over time, they build a stable and
coherent body of legal principles that delineates the authority under law of the
democratic arm of government and those who exercise power in its name.
Moreover, the constitutional role of courts under a postwar constitution is
continuous with the traditional judicial role and unlike the legislative function.
Many of the norms involved are rooted in judicial creations of the past that took
the form of common law presumptions, canons of statutory interpretation, and
restrictions on the exercise of public power by the administrative arms of the
state. The expanded judicial role extends these longstanding norms of fairness
to the assessment of statutes, under constitutionally constrained modes of
analysis that include review for legality and proportionality. Judicial review
does not lead courts into the open-ended world of political debate and policy
formation, but allows them to operate as the independent and 19
legally expert
institution that safeguards the basic constitutional structure.

19 "[A ] limited Constitution [,]... one which contains certain specified exceptions to
the legislative authority., can be preserved in practice no other way than through the
medium of courts ofjustice, whose duty it must be to declare all acts contrary to the manifest
tenor of the Constitution void. Without this, all the reservations of particular rights or
privileges would amount to nothing." J. Madison, A. Hamilton & J. Jay, The Federalist
Papers (Harmondsworth: Penguin, 1987), No. LXXVIII. See also Marbury v. Madison,
(1803) 5 U.S. (I Cranch) 137.
LA REVUE DU BARREAU CANADIEN [Vol.80

So traditional is this function, that courts in many countries have come to


exercise it without express constitutional directive. The exercise of this authority
in this manner by some members of the Supreme Court of Canada just after the
Second World War is the subject of the next section of this essay.

I. The Supreme Court and the "ImpliedBill of Rights"

In Canada, the transition to rights-based democracy on the postwar model has


been a protracted process marked by a number of stages. The Supreme Court of
Canada's first response to the "age of rights" began with the short-lived attempt
by some of its members, under the shadow of events in Europe, to resist the
application of laws they believed inconsistent with the basic elements of British
constitutional tradition. Because thejudicial review power at hand derived from
the main preoccupation of Canadian constitutional law - the federal-provincial
division of powers- the tools were not well suited to the undertaking.
Nonetheless, in the hands of determined and imaginative judges, they worked
surprisingly well. The Court's second response began with a more decisive
commitment to the postwar model, the adoption of the Charterin 1982. I now
20
turn to the first of these.
The Supreme Court of Canada first responded to "the age of rights" in a
handful of judgments collectively referred to as the "implied bill of rights"
cases. Canada's constituent instrument, the British North America, 1867, did
not include abill ofrights. 21 Proposals to amend the Constitution to this endjust
after the War floundered. In a line of cases starting just before the War and
continuing for more than a decade afterwards, members of the Supreme Court
began to work out a distinctive account of the normative underpinnings of
Canada's constitutional order. From an examination of Canada's constitutional
tradition and constituent instrument, they extrapolated a basis for judicially
protecting fundamental freedoms in Canada just as these stood threatened
elsewhere. Although they did not refer to the momentous events of their day or
import ideas foreign to Canadian constitutional thought, they did on occasion
breach the rule that directed them to decide cases on their narrowest grounds.
This suggests the extraordinary significance they attached to the process of
constitutional reflection that they initiated.
At the root of the "implied bill of rights" cases lay a choice between two
approaches to the Canadian Constitution. Under the standard approach, rejected
by those who favoured the "implied bill of rights" analysis, the Constitution
stood on the rigid foundation of British statute, which established parliamentary
government and distributed plenary power exhaustively between the federal
20 1leave aside for the purposes of this discussion of the statutory CanadianBill of
Rights, S.C. 1960, c. 44, which had little positive effect other than to illustrate some of the
pitfalls that a constitutional bill of rights, designed with some care, might avoid.
21 (U.K.), 30 & 31 Vic., c. 3. now renamed the British North America Act, 1867, see
ConstitutionAct, 1982 (U.K.), 1982 c. 11, s. 53(2). Since the judgments under examination
refer to the British North America Act, 1867, I use that term as well.
2001] The Supreme Court of Canadain the Age of Rights

and provincial levels of government. The Constitution would then attract


interpretation along the lines of statute law, drawing upon ideas of legislative
supremacy, original intent and social stability. In contrast, the 'implied bill of
rights" cases regarded the Canadian Constitution as continuing to grow on its
flexible common law roots. On this view the Constitution incorporated the
British Parliament's graft of independent domestic parliamentary institutions
and a federal structure of government while continuing to develop as an organic,
responsive system of limited government, attentive to the primary importance
22
of residual freedoms.
The "implied bill of rights" approach combined the judicial role under the
flexible British common law constitution with the judicial review authority
established under Canadian federalism. There were no specified, directly
enforceable constitutional rights or freedoms in either the British or the
Canadian system. Nonetheless, the judges combined the two roles to create an
impressive degree of judicial protection of fundamental freedoms. The narrow
legal question was the same whether one subscribed to the "implied bill of
rights" or not: was the impugned law within the available grant of jurisdiction?
If it was, the judges had no further authority to inquire whether there was an
encroachment on a fundamental right or freedom. Thus the differences between
the two approaches largely played themselves out in the determination of the
scope of legislative jurisdiction under the federal distribution of powers.
The two approaches generated very differentjudicial analyses. The standard
approach presupposed that all jurisdiction was distributed, either to the federal
Parliament or to the provincial legislatures. Judicial analysis was restricted to
the precedents defining the legislative subject matters. The constitutional
document itself protected linguistic, ethnic, religious and cultural identity
through its construction of the political units of the federation and through
specific provisions such as those concerning language in the political process.
What would now be considered fundamental rights were protected only to the
extent that they were located in the constitutional document. Otherwise they
were dependent on widely shared notions of political moderation and restraint.
The "implied bill of rights" approach offered a wider basis for judicial
review. The Constitution did not divide the legislative powers merely according
to the rules of Canadian federalism. In addition, it restricted those powers in a
way that judges could articulate through the consideration of fundamental

22 See I.C. Rand, "Some Aspects of Canadian Constitutionalism" (1960) 38 Can. Bar
Rev. 135 at 152 where Justice Rand, the primary proponent of the implied bill of rights
approach, contrasts two metaphors for the British North America Act, 1867. The first is a
"tree growing in organic expansion", its language interpreted by judges "in its application
to the realities of 1959" (This metaphor, as applied to the Canadian Constitution, has its
origin in Edwards v. A.G. Canada, [1930] A.C. 124 at 136). In contrast, the metaphor of
a "ship with watertight compartments" would confine interpretation to the "unaided text,
a somewhat arid and unrealistic conceptualism" (See A.G. Canada v. A.G. Ont. (Labour
Conventions), [1937] A.C. 326 at 354). Rand preferred "enlargement of considerations ...
significant to the interpretation of a fundamental instrument" by taking contemporary
"conditions and consequences" into account. See infra text at note 30, 39, and 45.
THE CANADIAN BAR REVIEW [Vol.80

constitutional principles. The freedoms reflected in these restrictions were not


the gift of sovereign, law-making institutions; they were concrete examples of
the residual freedoms lying beyond the reach of the totality of legislative
authority.
The notion of residual freedoms was central to the complex of ideas
underpinning the expanded practice of judicial review. Residual freedoms
originated in the tradition of political self-restraint that characterized the British
system. These freedoms, such as "freedom of speech, religion, and the
inviolability of the person" were the "residue" of "original freedoms ... at once
the necessary attributes and modes of self-expression of human beings and the
primary conditions of community life within a legal order." 23 Under the British
system they had the fluid status of political conventions. They were then tacitly
acknowledged in the preamble to the British North America Act, which
announced thatCanadawas to have a constitution "similar in principle to the British
constitution." From this, the proponents of the "implied bill of rights" inferred that
the jurisdiction distributed through the federal division of legislative powers was
the legislative authority exercised in Britain. Accordingly, the residual freedoms
lay outside that division and had not been allocated. Indeed, by setting out a specific
list of the powers granted to the national and provincial legislative bodies, the
Constitution could be regarded as having fixed the totality of legislative authority
in a way that excluded the residual freedoms. These thereby emerged from the
fluidity of British constitutional convention to implicit recognition in the formal
provisions of Canada's constitutional instrument.
In the few judgements that took up this approach, the restrictions fell on the
provinces, rather than the federal government. The cases that arose did not
present the Court with the opportunity to consider the limits of federaljurisdiction.
This was not surprising. Sub-units in federal countries tend to produce more
extreme public policy than the national unit, which operates within a wider
spectrum of political opinion. This was, and remains, a characteristic of
Canadian politics given the size of the country, its regional diversity, high
immigration levels, the increasingly cosmopolitan and multicultural character
of its urban centres, and the uneven impact of globalization.
Other considerations prompted the Supreme Court to look restrictively at
provincial jurisdiction. The "implied bill of rights" model arose just as an
expanded Supreme Court succeeded the Privy Council as the highest appellate
court for Canada. The general wisdom, outside Qu6bec at least, was that the
Privy Council had pushed Canadian federalism too far from its original,
centralized design. 24 The result was an exceptionally weak national government,

23 Saumur v. City of Qudbec and A.-G. Qudbec, [1953] 2 S.C.R. 299.


24 See, for example, J. Beetz, "Les attitudes changeantes du Qudbec A1'endroit de la
Constitution de 1867" in P.-A. Crepeau & C.B. Macpherson, eds., The Future of Canadian
Federalism(Toronto: University of Toronto Press, 1965) and "Le Contrtle juridictionnel
du pouvoir l6gislatif et les droits de l'homme dans la constitution du Canada" (1958) 18
Rev. du Bar. 361 for the Quebec position noted. Generally, see K.E. Swinton, The Supreme
Courtand CanadianFederalism:The Laskin-Dickson Years (Toronto: Carswell, 1990).
20011 The Supreme Court of Canadain the Age of Rights

particularly in respect to economic regulation. Its inability to mount a national


response to the Great Depression, on the lines of the New Deal in the United
States, had re-enforced widespread exasperation and fuelled calls for change.
Formal readjustment to the division of powers was not feasible. It seemed likely,
however, that vesting final appellate jurisdiction in a domestic court would
result in adjudication more alert to Canadian exigencies. Advocates for this
change hoped that the Supreme Court would seriously re-examine its
predecessor's expansive view of provincial jurisdiction. At the same time,
Canada was also establishing its political independence from the British
Empire, so that the Supreme Court's new status materialized 25
just as it became
relevant to consider what kind of nation Canada would be.
Turning to the past for legitimation, the judges who developed the "implied
bill of rights" invoked Canada's constitutional heritage. British colonies inherited
the basic structure of the common law, with the addition of a constituent
instrument to provide the institutions of government and, in some cases, federal
arrangements as a well. Because the written constitution enjoyed higher law
status as British imperial statute, the domestic courts enforced its primacy over
domestic law through judicial review, subject to appeal to the Privy Council.
Canada's constitutional arrangements followed this pattern. The preamble to
the BritishNorthAmericaAct, 1867, Canada's constituent instrument, described
Canada's Constitution as "similar in principle to the British constitution".
The "implied bill of rights" analysis emphasized this preamble, as well as
the historical development in Britain of the parliamentary institutions that
Canada enjoyed. A feature of this development was the invocation against
absolute and divinely ordained rulers of the fundamental constitutional principles
that had created and sustained democracy and the rule of law. The elaboration
of those principles had been largely the work of judges. The "implied bill of
rights" continued that evolutionary process. Proponents of the "implied bill of
rights" did not regard the text of the British North America Act, 1867 as a
comprehensive constitutional instrument. Rather, they employed a purposive
approach, delineating the contours of the new Canadian national polity as a self-
governing democracy for a diverse, pluralist and, to some extent, divided
society. Three of their themes are of particular interest for the development in
Canada of the postwar model of the constitutional state: democracy as self-
government, the rule of law, and the relationship between the citizen and the
state.
The theme of democracy as self-government arose in the context of
challenges to extraordinary provincial legislation. Just before the war, the
Supreme Court of Canada struck down Alberta legislation that interfered with

25 Among the important transitional developments at this time were the achievement
oflegislative independence from the United Kingdom Parliament, the creation of Canadian
citizenship to replace British subject status, and Canada's increasing role on the world stage
as an independent actor.
LA REVUE DU BARREAU CANADIEN [Vol.80

freedom of the press. 26 In the 1950's, it considered a Quebec City by-law that
prohibited the dissemination of literature in the streets without official permission,
27
which was denied (as was apparently intended) only to Jehovah's Witnesses.
It also invalidated a Quebec statute that suppressed what were considered
subversive political doctrines. 28 These were clear breaches of the freedoms
protected under modem bills of rights and put in jeopardy by totalitarian
governments. At the time, however, Canada did not have a modem bill of rights.
The judges who favoured the "implied bill of rights" approach reasoned
that the British North America Act's preamble and its provisions establishing
parliamentary institutions created a democratic system of government. That
system required the conditions prerequisite for the free development of public
opinion. 29 The democratic process, as stipulated by the provisions establishing
parliamentary government at both the federal and provincial levels, would fail
if the government could restrict or penalize access to ideas and public debate,
even when that debate included strong criticism of government policy or
discussion of alternative forms of government. Democracy under the Constitution
was not merely a right to vote, or regular elections, or a system of representative
government. Democracy was self-government by free and equal citizens, who
were reasoning beings, living lives that included social interaction as well as
membership in faith communities. The democratic process did not install a
temporary and authoritarian regime empowered to restrict the very freedoms
that legitimated its temporary authority to govern. Democracy, as self-
government, reflected the sovereignty of the people, not the sovereignty of
government over the people. Accordingly, the subject matter of the British
North AmericaAct, 1867 presupposed freedom to consider ideas that the ruling
political party rejected or abhorred or that so deeply offended members of

26 Re Alberta InformationAct, [1938] S.C.R. 100. Alberta statute put newspapers under
the directive of an official to ensure publication of the "true and exact objects of the policy of
the Government". To this end, the newspaper had to publish statements relating to government
policy and activity as required and supply the sources for articles published upon request.
Contravention could lead to prohibitions against any further publication of the newspaper,
publication of articles by a particular person or emanating from a particular person or source.
27 Saumur v. City of Quibec andA. -G. Quibec, supranote 23. A municipal by-law of
the City of Quebec required the written permission from the Chief of Police to distribute any
written material in the city's streets. Saumur, a Jehovah's Witness, was charged with
distributing religious literature without apermit. The by-law gave no direction as to its purpose
or how discretion was to be exercised. It was enacted when the Jehovah's Witnesses became
very active in various places in the province. During argument the province did not deny the
statement that permission had been refused only to Jehovah's Witnesses. The trial judge
expressed the view that the situation amounted to religious persecution. See reasons for
judgment of Estey J. at 361-62.
28 Switzman v. Elbling (1957), 7 D.L.R. (2d) 337 (S.C.C.). The statute had two branches.
First, it made illegal the printing, publication and distribution of material "propagating or
tending to propagate communism or bolshevism," without defining those terms. Second, it
authorized the Attorney General, upon satisfactory proof, to order the closing of any premises,
including residential premises, used for these purposes for up to one year.
29 Re Alberta Information Act, supra note 26 at 133 per Duff C. J. and at 145ff. per
Cannon J.
2001] The Supreme Court of Canada in the Age of Rights

society, even a great majority of them, as to possibly provoke unrest or social


strife. The stability of the system would derive from an enlightened body of
citizens engaged in open and robust debate, not from state repression of
30
wayward subjects.
The judges who supported the "implied bill of rights" extended these ideas
to public law generally, thereby giving new vitality to the notion of the rule of
law. They saw no bright line between their review function over division of
legislative powers and administrative law. In all contexts, government power
was limited, not plenary. Its limited character had to be apparent both to the
citizen affected and to courts of law. In effect, the judges imposed the constraint
of express reason, the life force of the common law, upon every exercise of state
authority. Here the constraints on the state were formal rather than negative.
Statutes had to indicate their subject matter, and thus their jurisdictional
foundation, and delegate authority to administrative officials in prescribed
terms. Otherwise, there would be no demarcation between freedom, on the one
hand, and permissible regulation or prohibition, on the other. Courts of law
would be unable to carry out their constitutional duty to police this important
boundary. To some extent, the judges were taking up an old battle, the
supremacy of the legislature over the executive. But they were also imposing the
rule of law on legislatures.
The "implied bill of rights" cases provided numerous examples of statutes
that did not meet these standards. Some statutes vested general powers on
officials, used to target behaviour perceived to be subversive or immoral with
excessive penalties. In the most dramatic instance of unauthorized power, the
Premier of Qudbec directed the administrator of the Qu6bec Liquor Commission
to revoke a restaurant owner's liquor licence. This order destroyed a family
business, in effect punishing the owner for providing bail to fellow Jehovah's
Witnesses charged under laws created to protect the Roman Catholic majority
from theirreligious activity. RandJ. characterized this episode as the "beginning
of disintegration of the rule of law as a fundamental postulate of our constitutional
structure." 3 1 There were other instances of arbitrary administrative power,
which the judges could do no more than point out, given their limited powers
32
of review.

30 "[Parliamentary institutions in the British tradition, as in Canada, rest] ultimately on


public opinion reached by discussion and the interplay of ideas. If that discussion is placed
under license, its basic condition is destroyed: the government, as licensor, becomes disjoined
from the citizenry. The only security is steadily advancing enlightenment, for which the widest
range of controversy is the sine qua non", per Rand J., Saumur, supra note 23 at 330.
31Roncarelli v. Duplessis, [1959] S.C.R. 121 at 142.
32 A Chief of Police, without any terms defining his discretion, had the authority to
permit or forbid the distribution of written material in the streets and used that power only
against Jehovah's Witnesses: Saumur, supra note 23, at 332 per Rand J., 336-38 per Kellock
J. A Quebec statute that penalized the propagation of communism or bolshevism, in any
building or in print, included a detailed and expansive definition of the word "house", but
offered no definition of the words "communism" and "bolshevism": Switzman v. Elbling, (1957),
7 D.L.R. (2d) 337 at 363, per Fauteux J., at 368, per Abbott J., and at 353 per Rand J.
THE CANADIAN BAR REVIEW [Vol.80

By subjecting every exercise of legislative or administrative power to


review based on the idea of limited government, the "implied bill of rights"
afforded a new articulation of the relationship between state and citizen. For
example, the Privy Council had construed the provincial power over property
and civil rights as a plenary grant of authority over the entire range of public and
private activity in the province. Thus it had affirmed a provincial statute that had
33
denied the franchise to Japanese residents, whether naturalized or not.
Following this precedent, the Supreme Court later upheld a provincial law that
prohibited any "Japanese, Chinaman or other Oriental person" from employing
white women. 34 In a judgment that anticipated the "implied bill of rights"
approach, Idington J. dissented. He read the statutory language narrowly so that
it did not apply to British subjects, whose naturalization, under federal statute,
indicated good character and attracted certain liberties that the province could
not deny. This type of analysis was generally considered unacceptable for
judges because it broached on the "wisdom" of the plenary power of the
legislature in respect to public policy.
In contrast, the "implied bill of rights" cases read the grant of legislative
power to the provinces not as a reference to a domain of social life over which
the legislature was paramount, but to the vindication of civil injury on the model
of private law. The result was that the province could not invoke this power to
suppress the distribution of religious pamphlets offensive to the majority. Such
suppression would constitute prior restraint over free expression in the absence of
any impending harm, which, as a remedy unknown to private law, could not qualify
as the regulation of "civil rights." Nor could the suppression of opinion fall under
provincial jurisdiction over matters of a "local and private nature." That head of
jurisdiction was not a general grant of power over public wrongs. Such a power
would be incompatible with the federal power over criminal law, which was
explicitly concerned with public wrongs and was itself restricted by the residual
liberties. 35 These contractions of provincial legislative authority gave additional
scope to the residual freedoms, because the less expansive the province's
power, the more room there was to regard fundamental freedoms as residual.
Conversely, by affirming that the federal criminal law power required that
public wrongs be public in a national rather than provincial sense, the Court
began to develop the notion of national citizenship entitlements, anticipated by
Idington J.'s dissent in Quong-Wing. The Court's analysis recognized political
and religious freedom as national in scope, uninhibited by provincial law. Ideas,
debate and faith were matters of national, rather than local, concern. 36 Thus,
33 Cunninghamv. Tomey Homma, [1903] A.C. 151.
34 Quong-Wing v. The King (1914), 49 S.C.R. 440. For a fascinating study of this notable
case, see J.W. St. G. Walker, "Race, "Rights and the Law in the Supreme Court of Canada:
HistoricalCase Studies (Waterloo:, Ont.: Wilfred Laurier University Press, 1997).
35 Re Alberta InformationAct, supra note 26 at 144, per Cannon J.; Saumur, supra
note 23 at 329-32, per Rand J. at 349-50, per Kellock J., supra note 23 at 329-32, per Estey
J. at 359-61; Switzman, supra note 32 at 354-56, per Rand J. at 364-65, per Fauteux J.
36 Switzman, ibid. at 358-59, per Rand J., Saumur, ibid. per Rand J. at 329, per
Kellock, at 349, per Abbott ibid. at 371.
20011 The Supreme Court of Canada in the Age of Rights

access to newspapers free of government censorship and direction was vested


in all Canadians across the country. 37 This approach was extended to other
citizenship entitlements, such as the right to engage in interprovincial economic
ventures free of provincial regulation, the right to enter and move freely within
38
the country, and the fight to stay in the country.
This idea of national citizenship entitlements had potential to establish
extensive limits on state power, leaving more space for enjoyment of freedom.
Justice Rand, for example, expressed the view that provinces could not
discriminate against citizens on the basis of place of birth or racial origin,
contrary to Privy Council precedent. 39 He indicated that he would extend
protection to foreign nationals of friendly countries. 40 Although this approach
seemed to leave fundamental interests exposed to federal legislative
encroachment, some of thejudges were apparently prepared to impose the same
kind of restrictions even on the federal government. Justice Abbott in Switzman
v. Elbling expressed the view that Parliament could not abrogate the "right 4of1
discussion and debate", although it was not necessary to decide the point.42
Justice Rand did not take a position, but seemed to be similarly inclined.
Consistent with such restricting of federal authority was the narrow reading 43of
federal statutes to leave room for the enjoyment of fundamental freedoms.
The judges who developed the "implied bill of rights" understood that the
Constitution required them to act as guardians of the constitutional order,
protecting the fundamental principles inherent in the British tradition of
parliamentary government and implied by the terms of the British North
America Act, 1867. They regarded the Canadian Constitution as an organic
body of law, part written and part unwritten. Such a constitution was responsive
to the challenges produced by governments that aggrandized their regulatory
authority, overzealously maintained public order and stability, and assisted the
majority to sustain its cherished and traditional way of life at the expense of
those who adhered to other beliefs or practices. They understood that citizenship
in a nation of immigrants had to enjoy a foundation of principle rather than a
foundation of majoritarian cultural norms. Accordingly,judges were to use their
expertise and independence to police the boundaries between limited grants of

37 Re Alberta Information Act, supra note 26, per Duff C.J.C. at 134.
38 Winnerv. S.M.T. (Eastern) Ltd., [1951] 4 D.L.R. 529 at 563, Rand J., dissenting
in Co-operative Committee on Japanese Canadians v. A.G. Canada, [1946] S.C.R. 248.
The Privy Council affirmed the Supreme Court's ruling: [1947] A.C. 87.
39 I.C. Rand, "Some Aspects of Canadian Constitutionalism" (1960) 38 Can. Bar
Rev. 135 at 156.
40 Winner, supra note 38, per Rand J. at 559.
41 Switzman, supra note 28 at 371.
42 Ibid. at 359. In an interview given in 1962 he went further, see J.A. Barron, "The
Constitutional Status of Freedom of Speech and Press in Canada: The History of a Quiet
Revolution" (1963) 58 Northwestern Univ. Law Rev 73 at 100-01.
43 Japanese Cdn. Ref, supra note 38, S.C.C. per Rand J; Boucher v. the King, [1950]
1 D.L.R. 657; Canadian Federation ofAgriculture v.A.-G. Quebec, [1951] A.C. 179, per
Rand J. (Margarine Reference).
LA REVUE DU BARREAU CANADIEN [Vol.80

governmental authority and a sphere left free for the exercise of fundamental
freedoms. Constitutionalism so conceived was not in conflict with democracy. On
the contrary, the purpose of constitutional review was to ensure the continuity of
democracy, not just as an empty shell, but as self-government by free and equal
citizens, living their lives in a large, diverse and pluralistic society. Intellectual
pursuits, access to information, social and economic interaction, faith and community
were not contingent on customs rooted in a more homogeneous context or
concessions granted by temporarily elected governments.
These judges knew that they were implementing change in the interpretation
of the division of powers. Organic development of this kind they considered
legitimate as long as it remained true to its principled foundation. Rand J.
stressed this idea of change within continuity. The Supreme Court of Canada
possessed the same authority that the Privy Council had enjoyed in the past to
"modify the language" by which it described the grants of jurisdiction under
Canadian federalism, he wrote, and to "revise or restate" its "general interpretative
formulations". This "incident of judicial power" was "inseparable from
constitutional decision" and arose when the judges deemed it "necessary":

It involves no departure from the basic principles of jurisdictional distribution; it is


rather a refinement of interpretation in application to the particularized and evolving
features and aspects of matters which
44 the intensive and extensive expansion of the life
of the country inevitably presents.
In extra-judicial writing, Justice Rand was more forthcoming. He described the
most "significant and essential" attribute of the judicial role as courage,
describing Coke's famous statement to King James that he must submit to the
independent, learned and experienced judiciary in their articulation of the law
of England. 45 That courage emboldened the judiciary to carry out its role as "the
special guardians of the freedoms of unpopular causes, of minority groups and
interests, of the individual against the mass, of the weak against the powerful,
of the unique, of the nonconformist. 46 What were the sources for this role?
After dismissing the view that they were expressions of the judge's "private
opinion", Justice Rand gave this account:

The basic principles and considerations which are to give shape and direction to
judgment must be gathered as best they can from the precedents and affirmations of
the traditional law, from legislative enactments, from universally accepted attitudes
and working assumptions of our polity and their organic tendencies, from the
fundamental conception of freedom in society, and from tested experience of what,
considering all factors and interests, the mass of free and rational men applying the
rule of universality will ultimately accept or demand: these and the modes of reasoning
built up over the centuries, "the artificial reason," as Coke called it, of the law, 47
expanded and made flexible by the nature of the new matter of which it partakes.

44 Reference re FarmProducts Marketing Act, [1957] S.C.R. 198 at 213.


45 I.C. Rand, "The Role of an Independent Judiciary in Preserving Freedom" (1951)
9 U.T.L.J. 1 at 8.
46 Ibid. at 13.
47 Ibid. at 12-13.
2001] The Supreme Court of Canada in the Age of Rights

The ideas developed under the "implied bill of rights", as applied to the federal-
provincial division of powers, were emphatically rejected in the Supreme
Court's ruling in 1978, in A.G. Canada v. Dupond.48 A majority of the Court
reasserted the Privy Council's mode of analysis. As a result of this case, it could
no longer be said that there were any liberties presumptively withdrawn from
legislative reach. Provincial legislative jurisdiction was both primary and
plenary. Rights and freedoms were the product of positive law, not constitutional
entitlements protected against state encroachment by shared understandings of
the limits of state power. The preamble and the heritage of parliamentary
government to which it referred no longer functioned as the touchstones of
Canada's constitutional tradition. Democracy meant majority rule, and the
majority, defined by political commitments and religious belief, could properly
protect itself from challenge or offence. If sanctioned by the majoritarian
legislative process, societal security and solidarity might be promoted through
the suppression of ideas and activities branded as dangerous, dissident, and
provocative. It remained the historical prerogative of the local majority to
impose its own imprint on political and social life of the country, centred in the
province as a cohesive community, not in the more diverse and pluralistic
nation. 49 The judicial task was to respect the established political order, not to
nurture a constitution system whose principles respected the freedom, equality
and human dignity of citizens of a diverse society. Adherents to this position
might well have agreed with the approach to constitutional instruments offered
by Justice Scalia of the United States Supreme Court when he stated:

The very objective of a basic law, it seems to me, is to place certain matters beyond
risk ofchange, except through the extraordinary democratic majorities that constitutional
amendment requires. .. The whole purpose of a constitution - old or new - is to
impede change, or, pejoratively put, to 'obstruct modernity'.50
The Supreme Court's rejection of the "implied bill of rights" affirmed the view
that Canadian constitutionalism was based on legislative supremacy, federally
divided between the two levels of government. Fundamental rights and freedoms,
even the range generally considered essential to the democratic function and the
rule of law, stood dependent on the good will and self-restraint of the majoritarian
legislative process. Governments were under no obligation to bridle the
administration or to measure punishment, and could regulate behaviour, even
in the home, to sustain the community's orthodoxies.

48 (1978), 84 D.L.R. (3d) 420 (S.C.R.) While Dupond brings end to implied bill of
rights analysis in federalism, other areas of public law, where judicial review of statute is
not in issue, have continued this approach, the development of doctrines of fairness and
reasonableness review in administrative law and the protection of the independence of the
judiciary.
49 For another example of the parallel phenormenon in the U.S. federal system, see
R.M. Smith, Civic Ideals: ConflictingVisions of Citizenship in U.S. History (New Haven:
Yale University Press, 1997).
50 Justice A. Scalia, "Modernity and the Constitution" in E. Smith, ed., Constitutional
Justiceunder Old Constitutions (The Hague: Kluwer Law International, 1995) [emphasis
in original].
THE CANADIAN BAR REVIEW [Vol.80

However, this rejection of the "implied bill of rights" did not mark the
permanent demise of the idea that Canadian constitutional law should give greater
emphasis to the basic principles of modem liberal democracy. A constitution
understood to give no primacy to these principles proved unacceptable to the people
of Canada. Public debate on the state of the law, which often singled out specific
Supreme Court rulings as objectionable, galvanized support for a federally
sponsored constitutional reform agendadesigned to create apan-Canadian citizenship
based on guaranteed rights enforced by the judiciary in the postwar model. Eight
of the ten premiers strenuously opposed this project, deploying arguments that
invoked legislative sovereignty and conceived of the province as the primary social
and political community. The Charter'spopularity eventually prompted seven to
agree to the final compromises that led to the adoption of the Canadian Charterof
Rights and Freedoms,1982. Once the Charterwas in place, all eyes turned to the
Court to see whether a formal constitutional directive specifically mandating the
Court to give priority to rights would push the Court onto the path that the "implied
bill of rights" had illuminated.

IV. The Structure of CharterRights: Legal Structure and


InstitutionalRoles

The adoption of the Chartermarks Canada's most ambitious response to the age
of rights. It followed a number of failed initiatives. The attempt to coax an implied
bill of rights from the existing system had ultimately failed. Judicial review under
the Canadian Bill of Rights, 1960 had disappointed those who hoped, despite its
statutory status and conflicted text, that it would establish some degree ofjudicial
restraint on the federal government. There was no reason to believe that the
Canadian Parliament and the legislatures would spontaneously internalize the
postwar norms of liberty, equality and respect for human dignity in the near future.
It appeared that the majoritarian system would continue to preserve the historical
prerogatives intact. Only constitutional amendment, by adding a bill of rights to the
Canadian Constitution, would effect the transition to the postwar constitutional
state. But constitutional amendment on such a scale seemed very unlikely.
The Canadian Charter emerged from an extensive and intensive public debate
on the nature of the Canadian polity. The Charter project became part of a larger
exercise in constitutional renewal. Its main purpose was to bring Canada to full
legal independence, ending the authority of the Parliament at Westminster to
amend the BritishNorthAmericaAct, 1867. Prime Minister Trudeau's ideas on the
Charterreflected those developed in the judgments supporting the "implied bill of
rights", demonstrating the strong influence of his teacher, Frank R. Scott, who had
brought a number of these cases to court. 5 1 Trudeau sought to institute a common,
rights-based citizenship for a fractured population, originally bifurcated by

51F.R. Scott, Essays on the Constitution: Aspects of Canadian law and politics
(Toronto: University of Toronto Press, 1977); S. Djwa, The Politicsof the Imagination:A Life
of F.R. Scott (Vancouver: Douglas & McIntyre, 1989); L.E. Weinrib, "Trudeau and the
2001] The Supreme Court of Canadain the Age of Rights

religion and ethnic origin and increasingly multicultural. His undertaking was
a response to de Tocqueville's question: "how can society escape its decline
'52
without a strengthening of the moral bonds as the political bonds loosen?
Having come of age in the repressive and homogeneous Qu6bec reflected in the
"implied bill of rights" cases, Trudeau sought to battle Qu6bec nationalism by
establishing protections for the individual and for the identity group, as well as
the rule of law. 53 In this, his project was, in effect, to create Habermas'
constitutional state, wherein constitutional patriotism would replace ethnic
nationalism and displace the historical majority's cultural hegemony. Trudeau
hoped that the Charterwould elevate the individual above the particularities of
birth, create equality of opportunity across Canada for all Canadians, and firmly
establish the basic range of democratic and legal rights.
Opposition to Trudeau's Chartercame from those whose interests would
suffer in this new dispensation. Quebec nationalists opposed any pan-Canadian
vision. Most provincial premiers opposed the Charter's potential to erode
provincial power and, more generally, the authority of the legislatures and the
executive. They preferred the flexible British mode of constitutionalism, in
which, in their understanding, legislatures held paramount authority. When efforts
to reach a compromise among government leaders failed, Trudeau appealed to
ordinary Canadians to support his Charter as part of a "people's package" of
constitutional reform. The response was very positive. Opinion polls consistently
revealed a strong preference for a constitutional system that protected rights,
although there was less public confidence in the ability of Canadian judges to
perform the function that would fall to the judiciary in such a system.
A decade of effort produced a multitude of draft texts that followed the
pattern of other rights-protecting instruments, blending universally accepted
concepts with domestic Canadian features. 54 In conformity with the postwar
model, all the Charterdrafts included lists of rights and some sort of formula
for permissible limitation on those rights. Some expressed the important
distinction between limitation and abrogation of rights. The early versions, for
example, would have permitted the state to limit rights guarantees when it
exercised traditional public powers, such as protection of public order, safety,

Canadian Charterof Rights and Freedoms: A Question of Constitutional Maturation" in A.


Cohen & J.L. Granatstein, eds., Trudeau's Shadow: The Life and Legacy of PierreElliott
Trudeau (Toronto: Random House, 1998).
52 G. Frankenberg, "Tocqueville's Question. The Role of a Constitution in the
Process of Integration" (2000) 13 Ratio Juris 1. See also L. Kihnhardt, "European Courts
and Human Rights" in D. Greenberg et al., eds., Constitutionalismand Democracy:
Transitionsin the Contemporary World (New York: Oxford University Press, 1993).
53 See L.E. Weinrib, "Trudeau and the CanadianCharterof Rights and Freedoms:
A Question of Constitutional Maturation" in A. Cohen and J.L. Granatstein, eds.,
Trudeau's Shadow: The Life and Legacy of PierreElliott Trudeau (Toronto: Random
House, 1998) 57.
54 L.E. Weinrib, "Of Diligence and Dice: Reconstituting Canada's Constitution"
(1992) 42 U.T.L.J. 207.
722 LA REVUE DU BARREAU CANADIEN [Vol.80

health or morals, national security and the rights and freedoms of others. 55 The
particular powers specified were those considered appropriate to supersede
rights to which the various limitation clauses attached. Later, the limitation
clause became a general, more abstract formula applicable to all the rights and
freedoms guaranteed and found its place in the first section of the Charter.
These developments in the text reflect the evolving understanding of the nature
of rights guarantees and the institutional roles appropriate to their protection.
The general and abstract formulation defined both the scope and limits of the
entire body of Charterguarantees. These features the central importance of this
clause in the general scheme.
Although the federal government's commitment to the Charterproject was
strong, it accepted a weak limitation clause in the hope of winning the support
of the opposing premiers. The compromise draft guaranteed a range of rights
subject to "reasonable" limits, "acceptable in a democratic society with a
parliamentary system of government." This formula would arguably have
subordinated the Charter's content to legislative sovereignty, one of the
hallmarks of parliamentary government given the repudiation of the "implied
bill of rights" approach. A standard of general acceptance in a majoritarian
system of government, with no higher law system of rights protection, would
likely have perpetuated the historical majority culture. The compromise limitation
clause gave no clear directive to do otherwise. As Lord Sankey, L.C., had
admonished fifty years earlier,

Customs are apt to develop into traditions which are stronger56than law and remain
unchallenged long after the reason for them has disappeared.
Common sense or custom often departs from reason, which stands as the basis
of the common law methodology as well as of the fundamental principles
57
within
the "implied bill of rights" approach to Canadian constitutionalism.
The final formulation of the limitation clause rejected this understanding.
It subordinated the historical majority's customary political prerogatives to
shape Canadian social and political life in its image. In sharp contrast to the
compromise formula, the Charter'sfirst provision sets down stringent rules for
meeting the standards of permissibility of limiting Charterguarantees. The
stringency imposed is the stringency of reason over custom, principle over
accepted practice.
The politicians did not initiate the changes to the Charter's text that
subordinated majoritarian preferences to reasoned elaboration of fundamental
rights and freedoms. They preferred a text that signalled no clear departure from

55 A.F. Bayefsky, Canada'sConstitutionAct 1982 andAmendments: A Documentary


History, vol. 1 (Toronto: McGraw-Hill Ryerson, 1989) at 215.
56 Edwards v. A.G. Canada, [1930] A.C. 124 at 134 (The Persons Case).
57 C. Geertz, Local Knowledge: FurtherEssays in InterpretiveAnthropology (New
York: Basic Books, 1983) at 10-11 makes a similar distinction. He differentiates between
common sense as a cultural system that reflects a "loosely connected body of judgement
and belief', on the one hand, and a rational frame of mind, on the other.
2001] The Supreme Court of Canada in the Age of Rights

the status quo, by which their governments preserved and protected the
traditional values of Canadian society. The popularity of the Charterproject
signalled widespread demand for constitutional change in order to introduce
more sensitivity to diversity and pluralism in the formulation of public policy.
When the politicians ultimately accepted the stringent and principled formula
for the Charter'sfirst provision, they acknowledged the legitimacy of claims to
constitutional rights made by individuals and groups whose interests Canadian
legislatures, federal and provincial, had consistently ignored or disregarded.
Parliamentary hearings, foisted on the Liberal government by the opposition
Conservatives who wanted merely to slow the process down, provided the
opportunity for individuals and groups to make their priorities known to their
premiers and prime minister. Aided by experts, Canadians who held the highest
personal stake in the precise operating features of the new system of rights-
58
protections bad the opportunity to design those features.
In nationally televised, lengthy, parliamentary hearings, ordinary Canadians
appealed to the politicians and to the general public. They mounted sustained
criticism of the Charterdraft. Established public interest groups as well as ad
hoc groups came forward, committed to liberal democracy generally or to the
well being of less well-served segments of Canadian society drawn on racial,
religious, gender and indigenous lines. One after another they pointed out
various failings in the proposed draft text. All denounced the limitation clause
as a sell-out. Experts added their voices, declaring their preference for the
admittedly inadequate status quo in order to preserve for a more propitious
proposal what was perceived as the one opportunity for constitutional change.
How, they demanded to know, would a standard of "acceptable" limits on
rights offer any protection whatsoever? Every incursion on fundamental rights
in Canadian history, whether major or minor, they pointed out, had enjoyed
general acceptance by a majority of the relevant political constituency at the
time of enactment and, in many instances, for long periods thereafter. A system
that left such fundamental interests to majoritarian policy-making was the
problem, not the solution. These well-remembered outrages had been the work

58 The parliamentary hearings demonstrated the widespread belief that there had been
a profound democratic failure in Canada. The popularity of the Charteracross the country
gave great weight to the submissions to the parliamentary committee. In the statutory
context, John H. Ely has made the case for special judicial scrutiny over laws that
discriminate against the effectively disenfranchised, to rule out the possibility of democratic
failure. See Democracy and Distrust:A Theory of JudicialReview (Cambridge: Harvard
University Press, 1980). The Canadian example gives the opportunity to carry his ideas
over into the constitutional context, where the political have-nots acquired the rare
opportunity to effect changes to their constitutional entitlements because of identified
democratic failure. Ely's argumentation, transferred to the constitutional level, would
require careful scrutiny by the judiciary for compliance with constitutional provisions
drafted by the effectively disenfranchised to remedy deficiencies in the political process.
When those provisions contain not only the content and basis for limitation on constitutional
rights, but also the whole framework ofinstitutional roles in respect to policy formation and
rights, Ely's approach would demand an active role by the judiciary to sustain the design
captured by the amendments.
THE CANADIAN BAR REVIEW [Vol.80

of every arm of the state - the executive, the representative and accountable
legislatures, and the courts of law. The most egregious examples had produced
challenges under the rules of Canadian federalism, precipitating the "implied
bill of rights" cases, as well as under the Canadian Bill of Rights. These failed
challenges provided the benchmark that the new Charterhad to meet.
The attack on the "generally acceptable" limitation formulation was
persuasive and effective. With public opinion polls demonstrating overwhelming
popular support across the country for the Charterproject, the federal government
set aside the compromise clause. It accepted new text, proposed by leading
experts in rights protection, Walter Tarnopolsky and Gordon Fairweather,
based on the postwar rights-protecting instruments. The result was a more
restrictive and more principled limitation clause, one that reflected the purposes
of the Charterprojectas defined by the Canadian public. This public engagement
lends extraordinary legitimacy and clarity to the Charter'sfirst provision and
thus to the role of courts in delineating the content and limits on the new rights
and freedoms. The Charter'spolitical history makes clear that its final text left
behind the system of government that elevated and preserved the established
prerogatives of the cultural majority. It introduced the diversity and pluralism
of the modem liberal state.
Each of the changes to the text brought the Chartertext closer to the postwar
model of rights protection. This, indeed, was the express purpose of these
changes. 59 The final formulation of the limitation clause required limits on
rights to be "prescribed by law", to import the protections of the rule of law in
accordance with the postwar model. In addition, permissible limits had to
satisfy a standard of reasonableness as well as demonstrable justification "in a
free and democratic society". This was the strictest of the limitation standards
contained in the earlier drafts. It removed the invitation to judicial deference
issued by the "generally acceptable" limits standard. These changes gave
normative priority to the guarantee over the limitation, by allowing only
justified, i.e., principled, limits on guaranteed rights and freedoms. This clause
made the final benchmark of limitation the idea of a free and democratic society.
Such a society offers not the perpetuation of the majority's power or its cultural
hegemony its historical context, but equal concern and respect for all members
of a diverse and pluralist postwar constitutional state. The bottom line is that
limitation would not include unprincipled, power-based abrogation of the
Charter'sguarantees.
The compromise limitation formula would have invited courts to abrogate,
not merely limit on principle, fundamental rights and freedoms as long as
government policy met the "generally acceptable" standard. Other features of
the earlier drafts also permitted abrogation of the guarantees. From it earliest
stages the drafting process had included clauses that permitted abrogation, often
in the form of provincial opt-in or opt-out options. The premiers who opposed

59 See L.E. Weinrib, "Canada's Charter of Rights: Paradigm Lost?" Rev. Const.
Stud. [forthcoming in 2001].
2001] The Supreme Court of Canada in the Age of Rights

the Charterinsisted that the text include these provisions to ensure that political
power continued to trump the guaranteed rights.
In the final text, abrogation was confined to the legislative override or
notwithstanding clause. Whereas the final formulation of the limitation clause
drew on the pattern of postwar rights-protecting instruments, the notwithstanding
clause was a distinctively Canadian creation. Its immediate models were rarely
used sections of the CanadianBill of Rights, 1960 and a number of provincial
human rights statutes. 60 These provisions empowered legislatures to expressly
depart from the regime of rights guarantees in order to afford the legislative arm
of government a measure of flexibility in exceptional circumstances. They had
almost never been used. Unlike the emergency derogation clauses of the
postwar rights-protecting instruments, to which the notwithstanding clause
might be compared, the Charterdoes not stipulate the presence of exceptional
conditions. 61 The override is also the work of the legislature, not the executive.
By majority vote, a legislature may temporarily suppress the guarantee of
certain rights for a maximum five-year renewable period if it states in the body
62
of the relevant enactment that it is to have this effect.
The insertion of the notwithstanding clause at the insistence of the provincial
premiers who opposed the Chartermarked the final structural compromise.
Although it has attracted considerable controversy, one can argue that the
notwithstanding clause preserved the institutional coherence of the Charter.
The rejected limitation clause attempted to bridge the unbridgeable gap between
those who wanted a Charterand those who did not. It would have invited the
courts to administer a system of rights protection in one hand and take it away
in the other. Some commentators assert that the Charter'scombination of a
guarantee of rights, a limitation clause, and an override clause produces the
same effect. That, however, is not the case. The combination of an override with
a postwar model limitation clause offers a greater measure of institutional
coherence than the "generally acceptable" limitation clause.
The "generally acceptable" limitation clause would have sent a contradictory
message to the courts. How couldjudges meaningfully exercise judicial review
if the rights guarantees could be limited by any generally acceptable exercise of
power? The Charterwould have mandatedjudicial review while simultaneously
destroying any intelligible standard for such review. Moreover, the "generally
acceptable" limitation clause failed even to require that limitations on rights be
"prescribed by law". The point of reference for a "generally acceptable" limit
seemed to be majoritarian approval, in Canada or elsewhere, with no stipulation
of compliance with the norms of legality associated with the rule of law.

60 Bayefskey, supra note 55, vol. 2 at 905.


61 See R. St. J. MacDonald, "Derogations under Article 15 of the European Convention
on Human Rights" (1997) 36 Col. J. of Transnational Law 225 and J. OraB, Human Rights
in States of Emergency in InternationalLaw (Oxford: Clarendon Press, 1992).
62 CanadianCharterof Rights and Freedoms,Part I of the ConstitutionAct, 1982,
being Schedule B to the CanadaAct 1982 (U.K.), 1982, c. 11, s. 33.
LA REVUE DU BARREAU CANADIEN [Vol.80

The acid test of any proposed constitutional formula was how it would
impact on the judicial review function of the Supreme Court of Canada that the
public had found unsatisfactory in the past. The "generally acceptable" clause
may well have produced rulings upholding the repressive and authoritarian laws
reviewed in the "implied bill of rights" cases. 63 For example, under this test a
court would have confirmed the restrictions on the press imposed by the
Alberta government before the War to ensure that provincial newspapers did
not undermine the government's economic policy by printing contradictory
data or opinion. The government's claim was that the policy could only operate
if Albertans believed in it without distraction by critics or contradictory
information. In the Qu6bec cases in the 1950's, several Supreme Court judges
invoked the majority's historical prerogative to preserve and protect its way of
life. They cited the urgent need to protect the feelings and safety of this majority
by suppressing the religious activities of the Jehovah's Witnesses in the streets
and the discussion of communism in private homes. The majority judgment in
Dupond shared this view. The legislation and administrative actions in issue in
these cases were not merely generally acceptable; they were overwhelmingly
supported.
In contrast, the limitation clause finally inserted into the Charter text
creates a legally intelligible standard of judicial review. The courts are to
ensure not that the policy emanated from a duly elected government or that it
enjoyed strong support, but that it is consistent with the equal rights of all
members of Canadian society. In performing this function, the courts do not
usurp the policy-making role. They analyse the content of rights, oversee
prescription by law, and determine whether the impugned policy can meet the
test of demonstrablejustification. Demonstrablejustification requires application
of the proportionality tests, by which the postwar rights-protecting systems
maintain the primacy of the rights or of their underlying principles over
ordinary political preferences. These components make up a judicial role that
has legitimacy in a democracy whose members are considered free and equal
citizens, not merely occasional voters in a system in which the majority sets its
way of life as the general standard.
The messy politics of the Charter'sadoption ultimately created a complex
but coherent set of institutional roles. The Charter vests the courts with
oversight of the conditions imposed by those roles. That function includes two
main tasks. First, because the guarantee of rights restricts the range of
permissible policy, the courts examine laws alleged to encroach on guaranteed
rights. Second, because rights are not absolute, courts examine whether the
legislature and executive have met the standards set down in the limitation

63 The analysis offered here stresses the "generally acceptable" part ofthe formulation.
It does not put much weight on the "parliamentary system of government". To reach the
conclusion that parliamentary democracies do not, for example, interfere with freedom of
the press or political demonstrations, would depend on analysis similar to the a implied bill
of rights approach. It is unlikely that this version of the Charterwould have generated a
return to those ideas.
20011 The Supreme Court of Canada in the Age of Rights

clause. The courts must first determine whether the impugned measure satisfies
the stricture of being "prescribed by law". In addition, they must determine the
permissibility of state encroachment on these guarantees under the principled
strictures of the limitation clause. Charterguarantees are thereby put beyond
the reach of the ordinary law-making process. The guarantees not subject to the
override clause remain entirely within the realm of adjudication. These are the
mobility rights, language rights and democratic rights, which even the premiers
who opposed the Charterultimately accepted as appropriate subject matter for
final judicial review. The other guarantees - fundamental freedoms, legal and
equality rights - they left within the auspices of the courts in the same way,
unless the Parliament of Canada or the legislature of a province invoked the
notwithstanding clause to bring them back into the political arena. 64 In that
event, the right would be suspended for the currency of the legislative directive,
to a maximum renewable period of five years. When - and if - a particular
Charterclaim or judicial ruling proved intolerable to the general public or to
their elected representatives, the notwithstanding clause made it possible for a
majority of legislators to bring the issue back into the legislature for resolution
unencumbered by the Charterguarantee.
The notwithstanding clause put the opposition to the Charter,which the
Trudeau government could not decisively defeat, where it belongs: in the arms
of government that is politically accountable. The preconditions set down for
exercise of the override power require the legislature to bring the Charterissue
out into the open for legislative and public debate. These preconditions intensify
political accountability in three ways. First, they require express invocation of
the power. Sunlight remains the best disinfectant. Second, they require reference
to the right or freedom superseded so that the debate will have some focus.
Third, they make invocation of the override power temporary so that the
political headache never goes away. An issue debated in the legislature without
an override clause isjust one more issue of public policy. Add an override clause
and the same issue takes on constitutional stature. Experience has shown that
public reaction against using the override can be swift and decisive. The
intensity of the accountability that the override clause precipitates has prompted
some governments to pledge not to invoke it without a referendum. While its
architects anticipated that the override would be used rarely, in exceptional
situations, the political cost has turned out to be higher than expected. Opprobrium
has reached beyond a particular province's borders to influence political
opinion in the rest of the country, verifying the idea that fundamental freedoms
have a national dimension as suggested by the "implied bill of rights" analysis.

64 The override clause does not require that the legislature act only after a court ruling,
but this has become the practice. It makes sense that the government use the override only
when it has failed to convince the highest court that the impugned law is prescribed by law
and demonstrably justified. Much of the debate on using the override clause now turns on
such considerations. Unless the policy in issue is diametrically opposed to the Charter,
there is always some way to narrowly tailor it so that it merely limits and does not abrogate
the constitutional guarantee in question. In result, reliance on the override is not necessary.
THE CANADIAN BAR REVIEW [Vol.80

Indeed, in the instance of Qudbec's use of the override to suppress language


rights guaranteed under the Charter,the ramifications have reached beyond
Canada's borders. 65 Thus the Chartercreates constitutional politics as a new
kind of political engagement in Canada.
In this respect, the Charterstands in contrast to rights-protecting systems
that do not reflect the post war model, such as the United States. Bill of Rights.
These systems leave no room for constitutional political activity other than the
politics of constitutional amendment. Constitutional amendment, however, is
made difficult in order to support the stability of liberal democracy over the long
term against the forces of transient majorities. Legislatures therefore have no
discernible day-to-day constitutional role. Critics of judicial review in such a
system assert that elected representatives have lost the highest institutional
status, based upon legislative supremacy, and stand subordinate to the
constitutional mandate of the non-elected, non-representative, unaccountable
judiciary. Under these circumstances, many assert, the democratic function is
unacceptably weak. Frustrated politicians blame the judiciary for usurping the
legislative prerogative. They argue that the judges impose their own political
agendas without accountability. They turn their attention to controlling or
changing the method by which judges are appointed, or they may attempt to
exert whatever pressure they can to discourage judges from fulfilling their
mandate.
The Charter'smore complex institutional arrangements alleviate much of
this tension between rights-protection and democracy. Concerns about
democratic function motivated the Canadian premiers opposed to the Charter,
who did not accede to its adoption until there was agreement on the override
clause. This clause designates legislatures as constitutional actors but only, as
is appropriate, to the extent of their time-limited electoral mandate. The
ordinary political process cannot alter the enduring structure of the constitutional
state. By permitting legislatures to suppress some Charterrights for a maximum
five year period - to cover the period of the electoral mandate - legislators
continue to possess a day-to-day constitutional policy-making power. From the
standpoint of constitutional engagement, it does not matter whether they use this
power or refrain. What is important is that legislators have the responsibility to
monitor Charterclaims and to take seriously the option they hold of reversing
court judgments according to their views of public policy and the demands of
their constituents.
Moreover, unlike bills of rights that preceded the postwar model, the
Charter text expressly mandates a particular mode of judicial review. The
judicial role is consistent with the traditional roles of institutions under the
general framework of the separation of powers - adjudicating claims that
rights have been breached and evaluating claims ofjustification. The interlocking

65 For more detail on the ways in which provinces have used the notwithstanding
clause, see L.E. Weinrib, "The Notwithstanding Clause: the Loophole Cementing the
Charter"(1998) 26 Cite Libre 47.
2001] The Supreme Court of Canadain the Age of Rights

operation of the guarantee, limitation and override provisions restricts the court
to a legal, rather than a policy-making, constitutional function. The Charter
places thisjudicial review function within a complex of intersecting institutional
roles. It leaves legislatures able to abrogate rights when willing to pay the
political price for expressly departing from a constitutional norm in a statute that
may remain a matter of continuing political contention because of the override's
temporary duration. When politicians possess an override power, their bitter
condemnations of court judgments, or their attempts to alter the appointment
process in order to have less "activist" judges, ring false.
The provisions for the rights guarantees, the limitation clause, the
notwithstanding clause, and judicial review are not the only institutional
directives under the Charter.A number of other provisions further elaborate the
legal structure for judicial activity under the Charter. A supremacy clause,
applicable to the whole Constitution, declares that "law" inconsistent with the
constitution as supreme law, is "of no force or effect". This clause provides the
core of the postwar model, in which the constitutional arrangements stand prior
to ordinary law-making, thus signalling the end to the hegemony of the
historical majority. The Charteralso spells out the normative content of the
rights and freedoms in a number of interpretative sections. These provisions
direct judges to take into account the continuing existence of rights and
freedoms beyond those guaranteed, stipulate the preservation and enhancement
of the multicultural heritage of Canadians, and direct that Charterguarantees
vest equally in male and female persons.
The preamble, which has less interpretative force than the Charter'sother
provisions, states that Canada is "founded upon principles that recognize the
supremacy of God and the rule of law". The reference to the "supremacy of
God" might suggest that Charter interpretation should promote traditional
values, including the majority's religious beliefs and practices. However, there
is strong indication that parliamentarians did not favour this view. The
Conservative opposition in Parliament proposed adding language from the
preamble to the CanadianBill of Rights, 1960 to the limitation clause, to ensure
that Charterinterpretation would respect these values. This amendment was
66
defeated.
The institutional roles set down by the Chartervest authority consistent
with the traditional roles of courts, legislatures and the executive. The legitimacy

66 The text of the proposed amendment read:


1. Affirming that
(a) the Canadian nation is founded upon principles that acknowledge the supremacy
of God, the dignity and worth of the human person and the position of the family in a society
of free individuals and free institutions, and
(b) individuals and institutions remain free only when freedom is founded upon
respect for moral and spiritual values and the rule of law ......
See Bayefsky, supra note 55, vol. 2 at 814. For a fuller account, see L.E. Weinrib, "Do
Justice to Us': Jews and the Constitution of Canada" in M. Brown, ed., Not Written in
Stone: Jews, Constitutions and Constitutionalismin Canada [forthcoming].
LA REVUE DU BARREAU CANADIEN [Vol.80

of the court's role is supported by the independence of the judiciary, legal


expertise, and experience in ensuring that limited powers do not exceed their
legal authority. The determination of the scope and content of rights is a
standard legal exercise. Purposive review in the abstract prompts judges to
review the political theory underlying rights protection generally and in respect
to each guarantee. More focussed purposive review prompts the judges to
evaluate the general and specific remedial purposes of the Charterin the same
way. The determination that there has been a breach of a right so formulated is
also a traditional judicial function.
Determination of the permissibility of limiting recognized rights also falls
within traditional modes of judicial analysis. Oversight of compliance with the
"prescribed by law" stricture is a standard mode of judicial review, also falling
well within the experience and expertise of judges who have developed the
common law to scrutinize the exercise of public power subject to law. 67 The
Charter'srequirement that the state demonstrably justify limits on rights on the
standard of a "free and democratic society" does not go beyond the modes of
analysis developed by the common law. Proportionality analysis follows from
the idea that rights are the norm to which encroachments stand as exceptions.
This type of review is deeply embedded in our legal system:

the very denomination of certain interests as ...


... rights means that any interference
should be kept to a minimum. In this sense 68
proportionality is a natural and necessary
adjunct to the recognition of such rights.
The idea that particular rights cede to principles has become a central analytic
tool for analysis under postwar rights-protecting instruments, both international
and national. 69 Its inclusion in the development of British common law, under
the influence of the European Convention and in anticipation of the coming into
operation of the Human Rights Act 1988, in October 2000, demonstrates that
proportionality analysis is a judicial preoccupation rather than an exercise of
70
raw political power.

67 R. v. Secy. of State for the Home Department,ex parte Simms, [1999] 3 All E.R.
400. The House of Lords construed general or ambiguous language in a prison standing
order, which might otherwise have been read to impose a blanket ban on oral interviews
between prisoners and journalists, narrowly. To read the order as imposing a blanket ban
would have denied a prisoner who maintained that he was innocent the right to persuade
a journalist, by an oral interview, to investigate the circumstances of conviction and
publicize the findings in the pursuit of justice. The narrow reading accorded with the
principle of legality, that general or ambiguous words should attract a narrow reading
consistent with fundamental rights. The Human RightsAct 1988 (U.K.), 1998, c. 42, s. 3(1)
dictates that legislation must be interpreted so far as possible to be compatible with the
rights guarantees under the European Convention.
68 p. Craig & G. de Bdrca, EU Law: text, cases and materials,2d ed. (New York:
Oxford University Press, 1998) at 351.
69 Supra notes 14 and 15.
70 Hon. Sir J. Laws, "Is the High Court the Guardian of Fundamental Constitutional
Rights?" (1993) Public Law 59 at 69: "...the greater the intrusion proposed by a body
possessing public power over the citizen into an area where his fundamental rights are at
2001] The Supreme Court of Canadain the Age of Rights

Thus, in creating new constitutional roles for the judiciary, the legislature,
and the executive, the Charterdoes not undermine the traditional separation of
powers. Courts apply a review function that is similar to their common law
functions. The mode of analysis they use is now well established in rights-
protecting instruments at the national and international levels under the postwar
model. The availability of the override means that courts have the last word only
with respect to the rights that the political framers of the override thought
appropriate. For other rights, the politicians retained the last word. In either
case, the political prerogative is not shifted to the courts. The proportionality
analysis, which reflects the legal structure in which fundamental rights and
freedoms enjoy priority over ordinary political preferences, assures that courts
do not engage in determinations as to the merits or wisdom of state policy.
The legislatures' constitutional role under the Charter enhances the
democratic function in Canada. In our constitutional system, legislatures must
conform to the rule of law. Certain freedoms prevail, unless the legislature
expressly and clearly encroaches. This is the structure applicable to common law
rights and presumptions. The requirement in the Charter'slimitation clause that
any limit on a right must be "prescribed by law", as a precondition to justification,
enforces that principle in respect to constitutional guarantees. If the legislature
wants to be in a position to claim in a court of law that its policy should prevail over
a Charterguarantee of a fundamental right or freedom, then it must at least work
the ordinary machinery of law-making, the very machinery that legitimates its
authority. When governments work under the discipline of the legality stricture,
citizens enjoy the benefits of the law-formation process generally, including
legislative debate and public and media comment.
The override clause marks a further application of this idea. It imposes
strictures in addition to those imposed by the "prescribed by law" stipulation. The
formal conditions set out in the notwithstanding clause (express invocation of the
override power, stipulation of the right(s) to be suppressed, temporary duration and
renewal) ensure that the legislature has worked the machinery of law-making in a
special way to reach an extraordinary end. To override a right, the legislature must
signal the constitutional significance of its behaviour. The legislature derives its
legitimacy not only from its compliance with the rule of law, but also from the fact
that its law-making process is the day-to-day exercise of the sovereignty of the
people. Itis therefore fitting that when a Canadian legislature sets out to deliberately

stake, the greater must be the justification which the public authority must demonstrate ...
Such an approach is, I believe, no more a usurpation of constitutional propriety than is the
conventional Wednesbury approach itself. No one suggests, nowadays, that the courts
behave improperly in requiring a Minister to bring a rational mind to bear on a question he
has to decide. In doing so, the court imposes ajudge-made standard on the decision-maker.
To bring forward a more exacting standard where the decision-maker proposes to prohibit
the citizen from expressing his opinions or communicating information in his possession
is not in principle a different exercise. In fact the courts do this already..." See also P.P.
Craig, Administrative Law, 4th ed. (London: Sweet & Maxwell, 1999) at 692 and 600-01,
with reference to R. v. Ministry of Agriculture, Fisheriesand Food, ex parte First City
Trading, [1997] 1 C.M.L.R. 250 at 279.
THE CANADIAN BAR REVIEW [Vol.80

subordinate a Charter right or freedom to a preferred policy, it must alert its


constituents. The special features that signify invocation of the override are
designed to generate attention and highlight the significance of the proposed action.
They may well impose a high, immediate and enduring political price for depriving
members of Canadian society of their constitutional entitlements. 7 1 Moreover, the
need to renew the override within five years to prevent it from lapsing means that
an override cannot become permanent unless its political sponsors are willing to re-
open the political debate. If the system works well, the announced intention to use
the override will precipitate public and parliamentary debate in Chartercategories:
what is the effect of the proposed policy on Charter rights?; why does the
government consider its policy more important than Charterrights?; ifencroachment
is desired or deemed necessary, why can't the government merely limit the rights
72
or freedoms as permitted by the standards of limitation?
The Charterwas formulated by an established parliamentary democracy
whose democratic institutions had been found wanting in the postwar period,
against the background of mid-century perversions of state authority. There was
no need to imagine what new institutions might do, as the formulators of a
constitution must when they create a comprehensive constitutional framework,
including new legislatures, executive and courts. The strengths and failings of
Canadian institutions were well known and fully debated. These failings
provided the remedial foundation of the Charterproject - to secure protection
of liberty, equality and human dignity in the creation of public policy and the
exercise of state power. Their strengths gave confidence that the new
constitutional dispensation would be viable.
The political battle for and against the Charter was a prolonged and
intensive confrontation that came to an innovative and unexpected conclusion.
Neither side won; neither side lost. Those who wanted rights protection did not
want the override. Those who wanted the override did not want the Charter,
especially a Charteras strong as the final text dictated, with its rich array of
rights guarantees and its narrow, principled limitation clause in the postwar
model. The Charter text thus embodies a compromise that created strong
judicial review, but not at the expense of the democratic function of elected

71 1 make this statement as a general statement, although I am aware that there a


number of override instruments in place in Qu6bec that attracted no press coverage or
public discussion in Qubec, and no reverberations in the rest of the country. These
measures slipped under the radar screen, in my view, because there were no judicial
determinations of Charterbreach, and that there likely were no Charterbreaches. See T.
Kahana, The PartnershipModel of the CanadianNotwithstanding Mechanism: Failure
and Hope (S.J.D. Thesis, University of Toronto, Faculty of Law, 2000) [unpublished].
72 The transformed political discourse, like the work done in government on proposed
policies, will be a discourse of public reason. Citizens treat each other as equals, not as
temporary (or permanent) winners and losers in the majoritarian game of politics. They
develop a political system that in process and substance reflects tolerance and mutual
respect even when their society is characterized by pluralism, diversity and even division.
See J. Rawls, "The Idea of Public Reason Revisited" (1997) 64 Univ. of Chicago L. Rev.
765.
2001] The Supreme Court of Canada in the Age of Rights

bodies with limited mandates of limited duration. The Charterdid not create
absolute rights nor did it impose a super-judiciary dominant over the other
branches of government. The Charter'sinstitutional structure allows the courts
73
to be courts, and the legislatures to be legislatures.
This was the compromise that the first ministers opposed to a Charter
wrested from their counterparts. The premiers would have defeated the Charter
project but for one feature of the conflict. The people of Canada, especially those
who, in an increasingly multicultural and pluralist society, had failed to
command equal concern and respect from their governments, made clear their
desire for a country responsive to the imperative of the age of rights. 74 They did
not put their trust in the majoritarian processes of Canadian legislatures. They
put their trust in the judiciary. They attributed the past performance of the courts,
in repudiating the "implied bill of rights" and in rendering the statutory Canadian
Bill of Rights ineffective, to the inadequacies of the legal system, not to the judges.
The people of Canada therefore demanded constitutional restructuring of that legal
system. They understood that the only way to constrain state power to the norms
of the postwar world was to create a constitution that gave rights enforceable
priority over ordinary political preferences.
The birth of the Charter thus featured the coalescence of the three
constitutional themes referred to in the introduction to this essay: the ultimate
sovereignty of the people, the restraint of the rule of law upon the exercise of
state power, and the protection of fundamental rights and freedoms. 7 5 The
formal exercise of constituent authority gave constitutional status to rights and
freedoms under law, supported by a process in which the politicians had to bend
to the people's will.

73 Sir J.Laws, "Judicial Review and the Meaning of Law" in C.Forsyth, ed., Judicial
Review and the Constitution (Oxford: Hart Publishing, 2000) 173 at 185: The common
law's evolution of principle is a process which cannot be replicated in the processes of the
sovereign Parliament in its legislative capacity... [A]ny adherence to and respect for the
concept of evolved principle on the part of Parliament is contingent, not necessary; and this
constitutes a difference in nature, of great importance, between Parliament's law and the
common law.
74 I set out the historical account in "Canada's Charterof Rights: Paradigm Lost?"
Review of Constitutional Studies [forthcoming in 2001]. The basic supporting material is the
record of the 1980-81 Joint Parliamentary Committee. It reveals how ordinary Canadians,
including a wide variety of interest groups representing many identity communities whose
interests had been disregarded by Canadian legislators, captured the agenda. In addition, the
solidarity of the provinces opposing the Charterwas broken by Prime Minister Trudeau's
offer of a referendum, which the premiers knew would lead to utter defeat of their position.
It is a political tragedy that Quebec was isolated from the final compromise, but it is clear that
Quebec did not reject the project of fights-protection in general. While Quebec initially
protested the Charter by using the override clause as extensively as possible, the current
separatist government has decided not to use the override. Ironically, the disincentive is not
provincial or even federal political protest. It is the desire to avoid appearing to oppress the
linguistic minority, a factor that might, if the separatist program meets further success,
undermine international support for an independent Quebec.
75 See text, supra note 6.
LA REVUE DU BARREAU CANADIEN [Vol.80

V. The Supreme Court and the Charter

In 1982, two important changes were made to Canada's Constitutional order.


Canada became a truly independent country, belatedly acquiring the ultimate
authority of a sovereign state - the power to amend its constituent instrument. At
the same time, Canada acquired a constitutional bill of rights that imposed
constraints upon the ordinary exercise of political authority in the postwar model.
It fell to the Supreme Court of Canada to integrate these extensive changes into a
coherent constitutional whole. The Court has not yet fully met that challenge.
So far as constitutional interpretation is concerned, the 1982 amendments
imparted renewed vigour to the perspective that had animated the "implied bill
of rights" approach to constitutional interpretation decades earlier. The Supreme
Court judges who subscribed to that approach considered the British North
America Act, 1867 to be Canada's Constitution, not merely a statute dealing
with constitutional matters. They did not regard the Court's new pre-eminence
as Canada's highest appellate body merely as one more formal step on the road
from colony to nation. Canada's legal independence amounted to a directive to
the Supreme Court to read that text as embodying the deepest values of
Canadian nationhood. 76 In effect, these judges took up the mantle of a modern
constitutional court, faithful to the liberal democratic principles on which the
country had been founded but liberated from the legal legacy that had secured
the hegemony of the established majority in an increasingly diverse and
pluralistic society.
The adoption of the Chartermarked the rejection, by the people as well as
by political compromise at the highest level, of the Court's repudiation of the
interpretative presuppositions of the "implied bill of rights". In 1978, in the
Dupondcase, a majority of the Court endorsed the understanding that the British
NorthAmericaActcreated legislative authority that was, when exercised within
its proper jurisdiction, both plenary and supreme. No operative constitutional
norms constrained the exercise of this authority: rights and freedoms were the
product of statutory creation or self-restraint. The Charter did not have the
effect of re-instating or validating the "implied bill of rights" approach. It
provided express constitutional guarantees, not freedom residual to limited
state power. Nonetheless, like the "implied bill of rights", the Charter wove
liberal democratic values into the country's constitutional fabric. In addition,

76 For a parallel change in interpretation by the Israeli Supreme Court of regulations


promulgated under the British Mandate, see Schnitzer et al. v. The ChiefMilitary Censor,
H.C. 680/88 at para. 9 per Barak J., as he then was:
"A legal norm- whether enacted or created by the judiciary - does not stand on its own.
It is a "creation which lives in its environment" ... It fits into its environment, influences
it and is influenced by it. The "legal environment" which influences every legal norm
"includes not only the immediate legislative context but also wider circles of accepted
principles, basic aims and fundamental criteria which derive ... from the 'sources of social
consciousness of the nation within which the judges live'... It is not necessary to repeat
these principles in every law; they constitute a kind of 'normative umbrella' over all
legislation."
2001] The Supreme Court of Canada in the Age of Rights

the Charter text, by its stature as a constitutional text and by its provisions,
precluded the restrictive reading that the Supreme Court had applied to the
statutory Canadian Bill of Rights.
The Chartertransformed the political process. It created some zones in
which state action was forbidden and others in which it was mandated. For both,
the limitation formula permitted the legislature to reassert its authority, but only
through the extraordinary exercise of establishing formal legality and substantive
justification in a court of law. A further reassertion of legislative authority could
come through the override or notwithstanding clause, which established a
different kind of framework, in a different forum, producing a different result.
By formal political enactment expressly invoking this power, the legislature
could temporarily reassert its primacy over certain, specified Charterguarantees.
The new amending formula added the final layer to this complex structure. By
meeting another set of political strictures, still more stringent, legislatures could
effect permanent alteration of the Charteror the Constitution. Each step in this
continuum required oversight by the courts because each operated subject to
defined legal powers. Standard approaches to interpretation would dictate the need
for strict compliance, because each possibility operated to relieve the state of the
duty to honour established legal entitlements having the highest normative status.
For some of these institutional arrangements, the new constitutional text gave
full and specific directives. For the others, it provided only the shorthand phraseology
characteristic of modem, postwar bills of rights. This latter language affirmed
the primacy of the common set of principles that constitute postwar
constitutionalism, adapted to a particular political context. It also established
the institutional framework to support these principles. So, for example, the text
of the notwithstanding clause, which embodied aconcrete compromise hammered
out by the first ministers, expressed the detailed terms of their bargain. The text
of the limitation formula, in contrast, was relatively brief. While the former said
all that was necessary to capture the bargain it embodied, the latter spoke
volumes. The limitation formula signified the emphatic rejection of the
penultimate limitation proposal, which would have left fundamental interests
hostage to the ordinary political process. Moreover, it inscribed with clarity the
Charter'sremedial purposes by incorporating the established terminology and
concepts of other postwar rights-protecting instruments. The Charter'sguarantees
manifested the same pattern. The clauses that reflected a concrete, made-in-
Canada content, often a compromise, contained more detail than those that
followed in the well worn path of the domestic and multilateral rights-protecting
77
instruments that were invoked as the chosen models.
It fell to the judiciary to oversee the fulfilment of the remedial purposes of
both types of drafting. This responsibility did not derive from special merit or
demonstrated prowess in deliberating upon claims to fundamental rights and
77 Section 15, equality rights, and section 23, minority language education rights, are
examples of the more detailed, concrete drafting style while sections embodying the
fundamental freedoms and legal rights exemplify the more abstract and universal drafting
style.
THE CANADIAN BAR REVIEW [Vol.80

freedoms of the type the Charterguaranteed. The debates that preceded the
adoption of the Charter, which emphasized the deficiencies of the existing
jurisprudence, suggested otherwise. Rather, thejudicial role inexorably followed
from other factors. First, the task required interpretation of a constitutional text
that made up part of the supreme law of Canada. Second, it called for expertise
in the adjudication of legal rights claims. Third, it demanded independence
because the claims would be the claims of right holders against the state. All of
these elements dictated that the task fall to the expert, experienced and
independent judiciary. The political significance of each aspect of the judicial
role was undeniable; the function itself, however, was quintessentially legal. It
was firmly rooted in the British common law foundation of the Canadian
Constitution, whether one subscribed to the "implied bill of rights" approach or
not. Moreover, it took as its exemplar the role of judges under postwar rights
protecting instruments, embedded in both civil and common law legal systems,
on which the Charterwas modelled.
The Court's new responsibilities were situated in the interstices of the
adjudicative function expressly established by the Charter.In cases that came
forward in great volume and in no particular sequence, the judiciary had to give
incremental effect to the Charter'spervasive transformation of our system of
government. The age-old case method that had produced the common law had now
to produce the foundation for a comprehensive and coherent new body of legal
doctrine having the status of supreme law. In the early stages, it was necessary for
the judges not merely to decide the case at bar on its merits but to provide the other
arms of government with sufficient guidance concerning their responsibilities and
obligations to ensure an orderly transition. Thus, in addition to ruling on the
particular challenge, the Court had to elucidate the primary principles, the structural
framework and the interpretative methodology of Charteranalysis. Otherwise,
governments would be unable to make intelligent and informed decisions as to
which of the many challenges instituted to defend and which to cede. Moreover,
they would be slow in fulfilling their Charterresponsibilities in the administration
of government or in policy formation. While all eyes were on the courts in the
Charter'searly days, the purpose of the Charterwas not to produce endless cycles
of Charterlitigation. On the contrary, the remedial purposes of the Charterwould
be left unfulfilled if the Supreme Court became the oracle of a Charterwhose
meaning was inscrutable, incoherent or unpredictable.
In mounting its second major response to the "age of rights", under the 1982
amendments, the members of the Court did not take the initiative as some of their
predecessors had done under the "implied bill of rights".7 8 On the contrary,
constituent power had intervened to amend the Constitution. It remained to be seen
whether the Court would welcome or resist the new constitutional directives.

78 The Court did play an important role in the process. Its judgments in Re Resolution
to Amend the Constitution, [1981] 1 S.C.R. 753, and, after the fact, in Re Objection by
Quibec to Resolution to Amend the Constitution, [1982] 2 S.C.R. 793, were important
steps. The Canadian Constitution would be very different today if the Court had ruled
differently in those cases.
2001] The Supreme Court of Canada in the Age of Rights

The Court has done both. It has, to a certain extent, welcomed and, to a certain
extent, resisted the incorporation of the Charterinto Canada's Constitution. The
tensions that the cases now routinely display would not be so surprising if the
Court's Charterjudgements had not started out so strongly. 79 Overall, the first
cases exuded confidence and precision. The Court delineated the Charter's
purposes crisply. Thejudicial and political roles were distinct and legitimate. The Court
was confidentininvokingthe Charter's principledfoundation, searching outcomparative
case law in the postwar model that provided the necessary direction. Then the structure,
its contours barely sketched, began to falter. Considerations inappropriate to a postwar
rights-protecting instrumententered the analysis. The postwarmodel ofrights-protection
diminished in importance. The Charter'stext, remedial purposes and political history no
longer dominated the analysis. The cases came to include the full range of possibilities,
from strict rights-protection, in the postwar framework, to deference to pre-Charter
institutional prerogatives, often under the influence of the more conservative stream of
United States constitutional theory and case law. Many cases marked fidelity to
consensus, tradition and custom, often with roots in majoritarian cultural and religious
beliefs and practices, with little regard for the normative foundation of the Charteror for
the diverse and pluralistic nation that it was designed to serve.
In the beginning, the Court built its structural foundation for the Charter by
identifying the purposive method as the appropriate tool to interpret the scope andcontent
of Charterguarantees. Purposive interpretation is the standard approach in the postwar
model and provided the inspiration for the "implied bill of rights". It explicates the
normative principles and values that legitimate elevating certain fundamental interests
as supreme law and thus as situated beyond the reach of the ordinary political process.
These principles dissolve the traditional lines of thinking that service legislative
sovereignty and maintain ordinary majoritarianpreferences. Political theory, legal theory
and history illuminate the project of rights-protection generally as well as the particular
provision under review. The judge examines in detail the degree to which the ordinary
politicalprocessand/orthejudicia systemhadprovedinadequateinthepre-Charterpast.
Comparative analysis plays a key role. The text of other rights-protecting instruments,
case law in other domestic and international systems, and secondary sources provide a
wide range of examples and a storehouse of analytic patterns. All this material comes
together to provide a normative foundation on which to delineate the scope ofthe Charter
right generally in an early case, or to consider its application in a new context in a later
one. This multifarious material fills the gap that precedent normally occupies in a system
that is not undergoing transformation. Against this background, the Court can focus on
the claim put forward by the claimant that state action of some sort, in purpose or effect,
breached the deepest norms of our political community.8s

79 L.E. Weinrib, "Canada's Constitutional Revolution: From Legislative to Constitutional


State" (1999) Is. L. Rev. 13.
80 For examples of purposive interpretation see Singh v. Minister of Employment and
Immigration, [1985] 1 S.C.R. 177; Hunterv. Southam, [1984] 2 S.C.R. 145;R. v. Big MDrug
Mart Ltd., [1985] 1 S.C.R. 295; R. v. Keegstra, [1990] 3 S.C R. 697 (majority); R. v.
Morgentaler, [1988] 1 S.C.R. 30; Rodriguez v. British Columbia, [1993] 3 S.C.R. 519
(dissents); Vriend v. Alberta, [1998] 1 S.C.R. 493. For detailed analysis of some of these cases,
see L.E. Weinrib , "The Religion Clauses: Reading the Lesson" (1986) 8 Sup. Ct. Law Rev.
LA REVUE DU BARREAU CANADIEN [Vol.80

While the Court still employs purposive interpretation, it does not do so


consistently. When it departs from this methodology, it does not account for the
departure. The analysis simply ceases to regard the Charter's guarantees as
crystallizations of the deepest norms of the postwar constitutional state, or as
corrections of failings in pre-Charterlegal system. The benchmark for the content
of Charter guarantees switches to positive law-making, consensus, custom,
tradition, community values, the family, nature and the public good. 81 One is
reminded of the analysis that stood opposed to the "implied bill of rights" as well
as that which prevailed under the statutory Canadian Bill of Rights.
The Court's treatment of the limitation formula displays a similar pattern. The
Court began by building its understanding of permissible limits on rights, derived
from the postwar model, into the structural foundation established by purposive
interpretation. Then, members of the Court began, on occasion, to revert to pre-
Charterpatterns of thought in a line of cases that privileged reasonableness and, by
extension, judicial deference to the ordinary political process. The abandonment of
purposive interpretation of the rights and freedoms was connected to the development
of the reasonableness-based approach to limitation. This change implied an
unarticulated shift in the conception of the guarantees themselves. It is only for
guarantees understood to embody the most fragile and fundamental entitlements
in our political community that the combination of formal promulgation and the
most principled basis for limitation would make sense. For guarantees defined by
the values that the majoritarian political processes protect in any event, a
reasonableness-based approach to limitation is well-suited.
In the early cases, the Court introduced the postwar model of limitation. It
emphasized that the judicial role even under the limitation clause was to read the
Charteras a rights-protecting instrument. It also made clear that the limitation
formula shared the same normative orientation as the rights guarantees. It then went
on to establish the structure of adjudication appropriate to these understandings.
The state would bear the burden under the limitation clause, first, to satisfy the
legality stipulation and next, if successful, to address the demands ofjustification.
The state would then have to meet a sequence of doctrinal tests for proportionality:
pre-eminent importance of the impugned action, rational connection of means to
82
ends, minimal impairment of the guarantee and proportionality of effects.

507; 'heMorgentalerJudgment: Constitutional Rights, Legislative Intention, andlnstitutional


Design" (1992) 42 U.T.L.J. 22; "Hate Promotion in a Free and Democratic Society: R. v.
Keegstra" (1991) 36 McGill L.J. 1416; "The Body and the Body Politic: Assisted Suicide under
the Canadian Charter of Rights and Freedoms" (1994) 39 McGill L.J. 618.
81Examples include Big M, supra note 80; Singh, supranote 80; Reference re Section
94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; Morgentaler,supra note 80,
(dissent); Keegstra, supra note 80, (dissent); R. v. Butler, [1992] 1 S.C.R. 452, Egan v.
Canada, [1995] 2 S.C.R. 513, per La Forest J.;Rodriguez, supra note 80, (majority);
Weatherall v. Canada, [1993] 2 S.C.R. 872; Law v. Canada,[1999] 1 S.C.R. 497.
82 Examples include R. v. Oakes, [1986] 1 S.C.R. 103,26 D.L.R. (4th) 200; Keegstra,
supra note 80 (majority); Morgentaler,supranote 80 (majority); Rodriguez, supranote 80
(dissents); Vriend, supra note 80; L.E. Weinrib, "The Supreme Court of Canada and
Section One of the Charter"(1988) 10 Sup. Ct. L.R. 469.
2001] The Supreme Court of Canada in the Age of Rights

Unfortunately, the Court's opinions did not adequately buttress this early
salutory approach. 83 The Court gave no indication that its complex doctrinal
edifice was consonant with (and indeed imported from) the evolving model of
postwar rights protection. There was no reference to the purpose, development
or application of express limitation clauses at the national or international level.
The judges did not cite the extensive literature on the operation of limitation
clauses in other systems of rights-protection. More particularly, they did not
take note of cases from other rights-protecting systems, which offered theory,
analysis, and example elucidating these clauses. Nor did the Court refer to the
legislative history of Canada's limitation provision, formulated to include the
postwar strictures on ordinary political preferences, rather than to maintain the
priority those preferences had hitherto enjoyed. The Court set out a complex
doctrinal system for analyzing proffered arguments of legality and
proportionality, but without offering a full purposive interpretation of the
Charter'slimitation clause.
This silence withheld the strongest bases for elucidating and legitimating
this central feature of the Charter'sstructure of rights protection. The cases do
not mention, for example, that the limitation clause became, in the final stages
of the Charter's drafting, the battleground between the first ministers who
wanted the Charterand those that did not. Nor do they reveal that it was the
public support for a strong Charter,one that would deprive the legislatures and
the executive of the power formerly used to negate or disregard fundamental
interests, that had secured the final strict and principled formulation. One would
not learn that the final formula was drafted to restrict limitation on rights to the
mode of analysis employed under the postwar rights protecting instruments.
Finally, one would not realize that there had been a trade-off in which the First
Ministers had accepted the narrow and principled limitation clause in place of
the deferential penultimate draft, in exchange for the notwithstanding clause.
Perhaps because the Court offered little beyond textual and logical analysis
to buttress its complex and surprisingly restrictive reading of the limitation
formula, a number ofjudges introduced an alternative approach. These judges,
sometimes in majority and sometimes in dissent, opted for a benchmark of
reasonableness, and therefore deference, for an ever-enlarging rubric of social
and economic policy questions. This approach undermines the whole purpose
of the Charter.It has no basis in the Charter's final text or chosen models.
Instead, it approximates the deferential "generally acceptable", reasonable
limits clause that fell by wayside in the parliamentary hearings; in other
instances, it effectively revives the formula, also rejected when the Charterwas
84
drafted, that would have subordinated Charterrights to traditional values.

83 In contrast, when the Supreme Court of Israel and the Constitutional Court of South
Africa, in their turn, established the framework of their new rights-protecting adjudication,
they gave full attribution, including generous reference to Canadian cases. See United
Mizrahi Bank Ltd., supra note 2 and infra note 111.
84 Supra note 64.
THE CANADIAN BAR REVIEW [Vol.80

How do thejudges support a reading of the limitation formula that reaches back
to earlier, repudiated versions? The analysis reintroduces the arguments against
entrenchment of the Charterbased on the singular ability of the legislatures 85
to
forge public policy with the advantages of representation and accountability.
The advocates of a deferential, reasonableness-based standard for limits on
rights mistakenly assail proportionality analysis as too abstract, formal, rigid,
and mechanical. 86 This language is taken from the realist assault on legal
formalism in the early decades of the twentieth century in the United States. The
critique was mounted against what was taken to be an arid conceptualism
divorced from facts and social context. The Charterlimitation clause, applied
in the postwar manner, has no such failings. The doctrinal tests do not establish
a set of conceptual standards divorced from the real lives of those who bring
their complaints of rights deprivation to the courts. Nor do they inhibit the state
from introducing into the courtroom any factual material, statistics or social
science expertise. On the contrary, their design is to force the parties to introduce
all manner of relevant adjudicative and legislative facts. The state must produce
this material or risk failing to discharge the various components of the onus
stipulated for departing from constitutional guarantees. In addition, various
features of Charterlitigation, such as public interest standing, intervention and
the introduction of legislative facts, bring the real world into the courtroom.
The resistance to proportionality analysis, based on its purported rigidity
and mechanical qualities, has also affected the way in which the Supreme Court
of Canada has applied the legality stipulation in the limitation formula. In some
cases the Court insists on fulfilment of this formal requirement, in others it does
not. When judges regard review for "prescription by law" as an important
safeguard for the right holder, they ensure that any limit on a right reflects some
degree of deliberation and formal law-creation. When they bypass this stricture,
they regard such protection as a technical and somewhat unfair fetter on the
state.
As noted earlier, the stipulation that limitation on rights must be "prescribed
by law" constitutes the first part of the limitation analysis. Its design is to impose
on the state the onus to demonstrate that compliance with formal components
of the rule of law, as a precondition to substantive justification. These formal
properties include concerns such as promulgation under legal authority, clarity,
accessibility and non-retroactivity. Attention to these aspects of the rule of law
would have addressed some of the excesses that arose in the "implied bill of
rights" cases, such as prohibitions couched in very general language, blanket
delegation of authority to officials, as well as arbitrary action by officials.

81 L.E. Weinrib, "Canada's Charterof Rights: Paradigm Lost?", supra note 59.
86 E.g. F.L.Morton and R. Knopff, The Charter Revolution and the Court Party
(Peterborough: Broadview Press, 2000).
2001] The Supreme Court of Canadain the Age of Rights

The "prescribed by law" stricture was initially applied by the Supreme


Court in this way. The Court expressly aligned this application to its postwar
model where the concern is to protect the rightholder by affording the benefits
of the rule of law. 87 Under this approach, failure to comply means that the state
has not discharged the formal component of its onus, so that it loses the
opportunity to justify its impugned action under the proportionality analysis.
The Supreme Court has adhered to this approach where police officers acted
without legal authority. 88 In other instances, however, it has completely
omitted to examine whether this stricture was satisfied. 89
Where concerns as to the "vagueness" of impugned legislation is in issue, the
Court prefers to leave this consideration aside and move on to what it calls "the
merits", i.e., the rational connection or minimal impairment stage of the
proportionality analysis. This preference seems to be based on the view that it is
reasonable for governments to legislate in broad terms or confer wide discretion
unless there has been a failure to provide an intelligible standard. 90 However, the
intelligibility of the standard rests on judicial definition after the fact, affording the
rightholder an inadequate basis on which to evaluate her legal and constitutional
positionbefore the fact.9 1 This approach denies the rightholder the benefit of being
subjected only to the more clearly defined regulatory authority92that would
emerge from a deliberative process complying with the stricture.
These ideas of reasonableness and deference have extended to the
notwithstanding clause as well. The political genesis, institutional design, and
impact of this clause suggest a restrictive reading. It marks a departure from the
highest norms, crystallized in the catalogue of guaranteed rights and further
protected by the requirement that limits on rights pass both the legality and
justification standards. Its terms were drawn from Canadian statutes that had
seldom, if ever, been used. It embodies the precise terms of a political
compromise exacted to appease the First Ministers who did not want a Charter
at all. Its terms make clear that it is both an exceptional and narrow power.
The Supreme Court has not had much opportunity to consider the
notwithstanding clause. In Fordv. A. G. Quebec, where such an occasion arose,

87 R. v. Therens, [1985] 1 S.C.R. 613. Re Sunday Times (1979), Eur. Ct. H.R. Ser. A.
No. 30.
88 For example, Therens, supranote 87; Strachanv. The Queen, [1988] 2 S.C.R. 980;
Debotv. The Queen, [1989] 2 S.C.R. 1140; Kokesch v. The Queen, [1990] 3 S.C.R. 3; R.
v. Grant, [1991] 3 S.C.R. 139.
89 For example, Weatherall, supra note 81; New Brunswick Broadcasting Co. v.
Nova Scotia, [1993] 1 S.C.R. 319.
90 Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; R. v.
Morales, [1992] 3 S.C.R. 711; New Brunswick (Minister of Health and Community
Services) v. G.(J.), [1999] 3 S.C.R. 46.
91 Sunday Times, supra note 87; Committee for the Commonwealth of Canada v.
Canada, [1991] 1 S.C.R. 139 at 213-14, per L'Heureux-Dub J.
92 P. Reyburn, The ConstitutionalRequirement of Legality in Limitation of Human
Rights (LL.M. Thesis, University of Toronto, 1999) [unpublished].
LA REVUE DU BARREAU CANADIEN [Vol.80

the Court offered a mixed approach. 93 Applying a standard consistent with the
rule of law's abhorrence of retroactive removal of rights, the Court ruled invalid
Qudbec's retroactive invocation of the override power. However, the Court
applied a reasonableness standard to other interpretative questions. Overruling
the Court of Appeal on this point, it did not require that the notwithstanding
clause specify the rights and freedoms actually breached by the laws into which
the clause was inserted. The Court thus permitted Qudbec, by omnibus enactment,
to insert a boiler-plate notwithstanding clause into every statute. The clause
recited every right or freedom that the override power could suppress, offering
no indication of the actual rights and freedoms that the government wanted to
subordinate to the policy embodied in the particular statute. This reading
extended the reach of the notwithstanding clause beyond its framers' bargain
and arguably beyond a strict reading of its text. 94 It enabled the Quebec
legislature to use this power to reject the Charter,to the extent possible, as a
protest against its adoption. The non-applicability of the Charterthus became
the norm in Quebec, not the exception, without the bureaucratic cost of
specification or the contentious political debate or protest that may well have
followed from such specification.
This overview of three basic features of Charterinterpretation - rights,
limitation and override - indicate that in important ways members of the
Supreme Court have yet to find common ground in the Charter'spurposes,
legitimacy or institutional structure. The Court is sometimes faithful to the
Charter'spostwar mode of rights-protection, sometimes not. Even within this
model, there would inevitably be some degree of divergence in the case law. The
cases often arrive at the Court lacking important elements, such as factual
material, legislative history, constitutional history or theory, and/or comparative
research. Given the difficulty and complexity of the cases and the fortuity of the
sequence in which they arise, judges can be expected to reach different
conclusions as to the strength of the argument and the supporting material. Law
after all does not generate single correct answers, but merely provides a
structure for analyzing legal claims. However, the divergence in the Supreme
Court's Charteranalysis does not reflect the expected range of application of
common presuppositions in specific cases. Nor, in view of the relative clarity
and cohesion of the Court's early judgments, does the present variability reflect
the difficulty of implementing a significant transition in legal rules, or a lack of
certainty about the nature of rights within the postwar model. Instead, what
seems to be in evidence is a wavering commitment to the postwar model of
rights protection or a lack of clarity about the Charteras an exemplar of that
model.

93 L.E. Weinrib, "Learning to Live with the Override" (1990) 35 McGill L.J. 541,
commenting on Ford v. A.G. Quebec, [1988] 2 S.C.R. 712, 54 D.L.R. (4th) 577, in which
the author acted as counsel to the Attorney General for Ontario.
94 Bayefsky, supra note 55, vol. 2 at 905.
2001] The Supreme Court of Canada in the Age of Rights

VI. Conclusion

Constitutional change, whether by reinterpretation in new circumstances or by


formal amendment, is a daunting undertaking. It unsettles the foundational
premises that routinely provide the legal system with its ultimate stability. The
1982 amendments precipitated extensive constitutional transformation of the
most basic kind in Canada. The incorporation of a charter of rights transformed
the relationship between citizens and the state. The patriation of the capacity for
amendment domesticated the power to alter the basic framework in the future.
Both changes required the most extensive rethinking of the role of existing legal
institutions.
In the last resort this task fell to the Supreme Court of Canada. In respect
to the first component of the change, the Court's initial response was consistent
with the remedial aspirations captured in the Charter'stext, flowing from its
political history, and exemplified in its chosen models. Subsequently, although
not decisively rejecting this approach, the Court subjected the Charter to a
deferential reading whose internal weaknesses are elaborated in earlier parts of
this essay. As a result of combining these inconsistent approaches, the Court has
not yet settled upon a secure and coherent understanding of the Charter's
transformation of our political system. In respect to the second component, the
amending formula, the Court has done better. In the Secession Reference, a
unanimous Court, in response to a challenge to the continuity and integrity of
Canada as a federal nation state, emphatically dismissed arguments elevating
majoritarian politics to sovereign status. 95 In so doing, the Court returned to the
ideas of constitutional coherence that nurtured the "implied bill of rights" cases
and the best of its Charterjurisprudence.
The task that remains is for the Court to integrate the approach to majoritarian
politics taken in the Secession Reference and under the "implied bill of rights"
into the Court's analysis of the Charter.This integration will have two major
beneficial effects. First, it will bring coherence and consistency to the Court's
constitutional jurisprudence. Second, it will bring to an end the first stage of
transition into Canada's new constitutional arrangements. The Supreme Court
will then no longer have to carry the burden of elaborating the framework of the
transition and will only have to maintain the stability of the transformed
constitutional order, resisting (in Habermas' words) "the overpowering of the
legal system by illegimate power relations that contradict [the constitutional
96
state's] normative self-understanding".
In the Secession Reference, the Court did not defer to legislative supremacy
or privilege majoritarian process. Nor did it parse the terms of the new amending
formula as isolated grants of plenary, political power. Rather, it returned to first
principles, citing some of its most important cases for propositions that
illuminated the values that make for the coherence of the Canadian constitutional

95 Reference re Secession of Quidbec, [1998] 2 S.C.R. 217.


96 Supra note 1.
THE CANADIAN BAR REVIEW [Vol.80

order. It then delineated the place of the democratic function in our constitutional
order and, in consequence, rejected the assertion that the Qu6bec legislature
could unilaterally effect Qu6bec's secession from Canada even pursuant to a
clear referendum mandate. 9 7 Secessionism's unprecedented assault on the
national integrity of Canada prompted the Court to articulate what lies at the
core of the Canadian Constitution.
Inthe SecessionReference the Court affirmed that the Canadian Constitution,
although primarily a written instrument, nonetheless has a "basic structure"
rooted in its origins in British constitutionalism. 98 Fundamental principles
"inform and sustain" the Canadian Constitution as "vital unstated assumptions".
These principles provide the Constitution's "internal architecture", its
"constitutional structure as a whole", and its "foundation". So fundamental are
99
they that they give life to the very idea of constitutionalism and the rule of law.
As among themselves, they enjoy a symbiotic relationship, such that "no single
principle can be defined in isolation from the others, nor does any one principle
trump or exclude the operation of any other."'t 0 In these statements the Court
recognizes that principles can only limit, and not abrogate, one another.
These principles provide interpretative direction for reading the text. Thus,
they help to define jurisdiction and to delineate rights and obligations. They also
provide the basis for constitutional development and evolution. They therefore
have a twofold function, simultaneously offering stability to the political system
and generating its potential for maturation and response to changed
circumstances. 10 1 The latter idea is captured in the organic imagery that the
Court invokes, referring to the principles as "vital", 102 as breathing life into the
system, 103 and as providing the Constitution's "lifeblood". 104 In this context,
the Court also refers to the preamble as having the effect of incorporating
constitutional principles by reference to fill the gaps in the incomplete text. 105
The Court also invokes the image of the Constitution as a "living tree", the
image that Lord Sankey, L.C. had used in the famous Personscase to invoke the
10 6
twofold function of constitutional principles.
The core constitutional principles give rise to substantive limitations upon
the state by providing interpretative direction for general or ambiguous language

97 The Court held that if the people of Qu6bec expressed clearly their will to secede
in a referendum there would arise a reciprocal obligation to negotiate constitutional change,
consistent with the constitutional principles. Secession Reference, supra note 95 at para.
87 to 93.
98 Ibid. at para. 49.
99 Ibid. at para. 49-54.
100 Ibid. at para. 49.
'01Ibid. at para.52.
102 Ibid. at para. 49.
103 Ibid. at para. 50.
104 Ibid. at para. 52.
105 Ibid. at para. 53-4.
106 Ibid. at para. 52.
2001] The Supreme Court of Canada in the Age of Rights

and by filling the gaps in the express terms of the constitutional text. 10 7
Democratic engagement is one of these principles, but it does not (as contended)
enjoy sovereign status, even if it gives voice to national aspirations. Nor does
it stand independent of other constitutional principles, such as federalism,
constitutionalism and the rule of law, and the protection of minorities. It must
10 8
function within the framework of these principles taken as a whole.
Citing Oakes (the first case on justified limits) and Switzman v. Elbling (a
leading exposition of the "implied bill of rights"), the Court reaffirmed a
substantive content for democracy. Included in this content are respect for
inherent human dignity, social justice, equality, pluralism and citizen engagement
in social and political institutions. 10 9 Thus we enjoy a system of government
that is best described as "constitutional supremacy", not parliamentary
supremacy.1 10 Democracy does not trump the other principles; nor is it the
raisond'tre of the Constitution. One can sum up the Court's analysis with the
following statement from an Israeli judgment elucidating the Israel's new
rights-protecting system, which is, in part, modelled on Canada's Charter:

'...'
true' democracy recognizes the power of the constitution - fruit of the constituent
authority - to entrench the fundamental human rights and the basic values of the
system against the power of the majority. Such limitation of majority rule does not
impair democracy but constitutes its full realization." I11
The invocation of first principles in the Secession Reference is consistent with
only one strand of the Court's ambivalent Charter case law. Only as an
exemplar of the postwar model of constitutionalism does the Charterreflect the
content of each principle, the multiplicity of principles, and the symbiotic and
non-negating relationship between principles. If the Constitution is to have the
inner coherence to which the Court aspires, then the Charter,as the part of the
Constitution that serves the function of protecting fundamental rights and
freedoms, must take up the same ideas in microcosm. 112 It must promise either
the enjoyment of the rights and freedoms themselves, or, through postwar mode
of limitation analysis as originally delineated in Oakes, the principles on which
they stand. The Court's reference to Oakes and not to cases in which deference
has held sway is hardly fortuitous.
In contrast, the reasonableness-based, deferential approach takes the Charter
in a quite different direction, away from this idea of constitutional coherence.
It emphasizes democracy as a one-dimensional process that stands prior to the

107 Ibid. at para. 53.


108 Ibid. at para. 71.
109 Ibid. at para. 64, with reference to Oakes, supra note 82 at 136 and Switzman v.
Elbling, supra note 28 at 306.
110 Ibid. at para. 72, 78.
111 United Mizrahi Bank Ltd., supra note 2, per Justice Aharon Barak, President,
Supreme Court of Israel.
112 For a theoretical exposition of this idea, see R. Alexy, "The Concept of
Coherence and Its Significance for Discursive Rationality" (1990) 3 Ratio Juris 130.
LA REVUE DU BARREAU CANADIEN [Vol.80

substance of rights guarantees, the rule of law, and the protection of minorities. It
allows traditional ideas of consensus and community to overwhelm the complex
institutional structure that the postwar model established to realize liberty, equality
and respect for human dignity in a diverse, pluralist and divided country.
Similarly, in the Judges' RemunerationReference the Court applied this
holistic approach to the constitutional principle ofjudicial independence. 113 In
analysis that anticipated the fuller account in the Secession Reference, the Court
emphasized that this principle does not merely elevate judicial independence
above the democratic machinery and its product. it also lays the basis for
effective judicial self-protection against the majoritarian machinery of
4
government in the rare circumstance when such self-protection is demanded.l
This important ruling is fully consistent with the understanding of the Charter
in the postwar, rather than the deferential, model. It too invokes the preamble,
the "implied bill of rights" analysis, the organizing principles of the Constitution
and the need to supplement gaps in the text to support its conclusion, that inferior
courts enjoy judicial independence. 115
The Secession Reference indicates that the constitutional framework in
which the Charteroperates is based on an ensemble of fundamental constitutional
principles, not merely on dry text or on the machinery that registers majoritarian
preferences. These principles mark the continuity between the Charter's
original remedial purposes and its ongoing development. The principles have
proved to be remarkably flexible. Inherited from the common law, they have
facilitated the advance from colony to independence, supported the working of
a complex federal system, and fostered the "implied bill of rights". More
recently, they have supplied the foundation for important rulings on the
independence of thejudiciary and the amending process. Unfortunately, however,
the Supreme Court's interpretation of the Charteris not entirely in line with this
understanding of our constitutional structure.
The Court's reluctance to fully embrace the Charteras a postwar rights-
protecting instrument may abate when the full significance of the Judges'
Remuneration Reference and the Secession Reference take root. Already, the
Court is allowing the postwar model to influence its jurisprudence in other
fields. Its insistence that the common law should be developed in a manner
consistent with Chartervalues is one indication of this. 116 Another indication
113 [1997] 3 S.C.R. 3.
114 In this instance the challenge to the independence of the judiciary arose in the
form of salary reductions.
115 Re Remuneration ofJudges(No.2), [1998] 1 S.C.R. 3, para 83, 85,94,95,102-03.
At para. 103, Lamer C.J.C. takes the "logic" of the implied bill of rights approach one step
further than did its early formulators, noting that since political institutions are fundamental
to the "basic structure" of the Canadian Constitution, "governments cannot undermine the
mechanisms of political accountability" that legitimate those institutions. This "dramatic
conclusion" seems to entail limits on Parliament's authority to act in this manner, aside
from Charterguarantees to that effect. As noted earlier, this question had been posed in
some of the "implied bill of rights" cases.
116 See "Constitutional Values and Private Law in Canada", supra note 13.
20011 The Supreme Court of Canada in the Age of Rights

is in administrative law, where the framework of rights subject only to justified


limitations, prescribed by law is emerging. This may be the significance of the
Baker case, in which the Court affirmed that international human rights norms
are an available interpretative resource when deliberating upon the exercise of
statutory discretion and, in addition, that the exercise of discretion must be
1 17
reduced to writing.
Developments on the world stage may support this trend. Some of our
judges seem to harbour a lingering apprehension that the Chartertakes us away
from our constitutional heritage by introducing modes of reasoning and
institutional roles that undermine legislative supremacy. The introduction of the
Human Rights Act, incorporating the European Convention into the law of the
United Kingdom in October 2000, will bring judicial analysis in British courts
closer to the postwar features of Charter analysis. In addition, recent
developments in the common law, both public and private, introducing respect
for fundamental rights, legality, and proportionality analysis, demonstrate that
the core features of Charteranalysis can be understood as one more stage in the
organic development of our shared constitutional tradition. 118 The co-existence
to date of these constitutional principles as shared between Canada and other
Commonwealth countries, despite the contrast between unitary and federal
governments, as Lamer C.J.C. noted in the Judges' Remuneration Reference,
suggests that the principles are highly adaptable.
Respect for the democratic function within the postwar framework of the
constitutional state is respect for constitutional democracy, not for legislative
sovereignty based on majoritarian process. Temporarily elected governments
are not sovereign. Rather, they are subject to the Constitution, which both
mandates the protection of specific rights and imposes duties of compliance
with the rule of law and with other constitutional principles. Interpretation of the
Charterthat resists this transformation undermines the coherence not only of
our system of rights-protection but of our entire constitutional structure, both
written and unwritten. Indeed, it undermines the coherence of every aspect of
public and private law that lies in the hands of the judiciary. In deferring to the
ordinary democratic process out of respect for the supposed sovereignty of the
legislature, judges risk a greater transgression of the constitutional order. They
risk usurping the constituent authority, which has now expressly subordinated
the ordinary legislative function to a system of rights-protection.1 19 They also

117 Baker v. Canada, [1999] 2 S.C.R. 817.


118 See supra notes 16 and 17.
119 The judges who rejected the "implied bill of rights" did not resist an exercise of
the constituent authority. They viewed the constitutional text as definitive and interpreted
it narrowly. They were resistant to evolutionary constitutional development. The "implied
bill of rights" approach was based on a re-interpretation of constitutional history, text and
theory in new circumstances, including the development of the postwar constitutional state,
demographic transformation of Canada and the abandonment of colonial status. It was
based on a theory of constitutional change and development consistent with fundamental,
structural principle, as set out in both the judicial and extra-judicial writing of the judges.
THE CANADIAN BAR REVIEW [Vol.80

expose themselves to the very critique that their deference is designed to avoid
- that they are not adjudicating as independent actors, according to established
legal rules and principles, but entering into the merits of the impugned law,
choosing (in Justice Scalia's words) to "impede modernity", and/or preserving
a preferred structure of legal authority.
Earlier in this century members of the Supreme Court formulated the
"implied bill of rights" in response to various pressures that revealed the
inadequacies of regarding the Canadian Constitution as a federal arrangement
of divided plenary authority. Because they had little constitutional text on which
to build their edifice, their efforts eventually faltered. However, the adoption of
the Charter,as well as the Judges Remuneration Reference and the Secession
Reference, reinstates their vision. In this vision, the Constitution is written and
unwritten. It contains implicit principles that judges may invoke to preserve its
integrity. Interpretation of its text is not the same exercise as interpretation of
120
a statute, giving rise to "a somewhat arid and unrealistic conceptualism."
The provinces do not frame our social and political lives to the exclusion of a
national, multicultural and pluralist dimension for citizenship and fundamental
rights. Thejudiciary stands as the living Constitution's guardian. This approach,
in the age of rights, is the defining function of a court that possesses ultimate
constitutional authority:

... an organ explicitly entrusted with the perpetual guardianship of the Constitution,
a stewardship that implies the continuous elaboration of the Constitution's meaning,
its singular purpose being to close the gap between constitutional reality and
constitutional normativity.

The resistance to the Charter as a post-war rights-protecting instrument, in contrast,


involves rejection of an exercise of constituent authority to transform the constitutional
system, including institutional roles. It does not see the constitutional text as central, as it
does not recognize its obvious postwar features. It depends on the idea that constitutions
are fixed, and views the institutional roles under the Canadian Constitution as unchanged.
For further elaboration of these ideas, see "Canada's Charterof Rights: Paradigm Lost?,
supra note 59.
120 Rand, "Some Aspects of Canadian Constitutionalism", supra note 39.

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