An American Debate Comes to Canada

• Author: Kent Roach
• Pages: 69-95

5

69

An

American

Debate Comes

to

Canada

Since

the

enactment

of the

Charter,

Canadians have played

out the

American debate about judicial activism

at an

accelerated pace.

Throughout

the

1980s

a

number

of

commentators

on the

left

expressed

concerns

that

the

Court

was

Lochnerizing

the

Charter

in a

manner

that

would

thwart legislative attempts

to

assist

the

disadvantaged

and

strike

down

progressive social legislation.

In the

1990s

Canadian commenta-

tors

on the

right duplicated American criticisms

of the

Warren

Court

by

arguing that

the

Charter

had

given

the

courts

too

much power

to

enforce

the

rights

of

minorities

and

criminals

and

that courts

had

invented rights

not

found

in the

constitution. Despite their

different

politics,

these

crit-

ics of

judicial activism share much

in

common. They

all

believe

that

judges

can

read their personal preferences into

the

Charter;

they

are all

sceptical about

the

rights asserted

in

Charter

litigation;

and

they

all

have

faith

in

majoritarian

forms

of

democracy

and

legislative

supremacy.

The

American

flavour of

Canadian debates about judicial activism

is

regret-

table

to the

extent that

it

ignores crucial

differences

in the

structures

of

the

Canadian

and

American constitutions, most notably

the

increased

ability

of

governments under

the

Canadian parliamentary system

to use

the

room provided

by

sections

1 and 33 of the

Charter

to

respond

to

Charter

decisions.

It is

understandable, however, given that most

of

what

has

been written about

the

role

of

courts under bills

of

rights

has

been

shaped

by the

overpowering American experience.

Judicial activism

is not a

disease that doctors

can

diagnose with

some degree

of

certainty.

At

best,

it is an

elaborate concept and,

at

worst,

a

label used

to

reach provocative conclusions without explaining

them.

Because

judicial activism exists primarily

in

people's mind,

it is

necessary

to

understand

the

minds

of a

variety

of

thinkers

who are not

household names.

By the end of

this chapter

we

will

see

that this exer-

cise

is not

entirely academic.

The

professors

and

others

who

have

defined

judicial activism

as a

problem that Canadians should

be

con-

cerned about

now see

their ideas

reflected

in

newspapers,

party plat-

forms,

and

even

the

judgments

of the

Supreme

Court.

Chapter

70

PART

1:

WHAT

IS

JUDICIAL

ACTIVISM?

The

Left

Critique

of

Judicial Activism under

the

Charter

Allan

Blakeney

was the

leading

left

critic

of

giving judges

the

last word

under

the

Charter,

and,

as

premier

of

Saskatchewan

at the

time

the

Charier

was

drafted,

he

played

an

important role

in

obtaining

the

inclu-

sion

of the

section

33

override

and the

omission

of

property rights.

Despite

these significant achievements, others

on the

left

continued

to

issue warnings throughout

the

1980s about

the

dangers

of

judicial

activism under

the

Charter.

The

focus

of

these critics' concerns were

several early

Charter

decisions which held that large corporations

enjoyed

rights against unreasonable searches

and

seizures, mobility

rights

to

pursue

a

livelihood,

and

rights

not to be

required

to

close

on

Sundays

for

religious reasons. These critics

feared

a

Canadian version

of

the

Lochner

era in

which corporations

and the

advantaged would

use the

Charter

to

repeal legislation enacted

to

assist

the

disadvantaged.

Andrew

Fetter,

who had

worked

as a

lawyer

for the

government

of

Saskatchewan

before

becoming

a law

professor

and who

later became

a

key

Cabinet minister

in

British Columbia's socialist government,

was

one of the

most influential critics

of the

Charter

and the

dangers

of

judi-

cial

activism.

He

argued that

the

Charter

would protect

the

advantaged,

such

as

corporations,

who had the

money

to

litigate

and an

incentive

to

resist state intervention,

but

would

do

little

for the

disadvantaged,

who

would

not

have

the

resources

to

litigate

and who

required "greater inter-

vention

by the

government

as a

means

of

achieving social justice."

J

Writing

in

1987,

he

observed that

the

Supreme Court

had

taken

"an

overtly activist posture"

by

recognizing

Charter

claims

in

eleven

of its

first

twenty-two cases. This record "does

not

mean that

the

Court

is

about

to

displace Parliament

as the

primary law-making body

in

Canada,"

but it was

wrong

to

assume that

the

Court's activism

was

cost-

less. Returning

to a

theme that Blakeney

had

often

expressed,

Fetter

argued

that "the Court does

not

have

the

luxury

of

expanding rights

in

the

abstract.

Rather,

it

must trade

off the

interests

of

some

in

favour

of

the

interests

of

others." Rights were really just interests that competed

with other interests.

The

Court's "hidden ideology

of the

state

as

inhibit-

ing

rather than promoting human rights"

and of

"negative

freedom"

ignored "the possibility that government action might

facilitate

individ-

ual

freedom

... of the

less

powerful

in

society

who

depend upon gov-

ernment

to

provide

and

protect their rights

and

freedoms."2

For

exam-

ple,

Fetter

feared

that

the

court's

"overt

activism"

in

defining

due

process rights

and

excluding unconstitutionally obtained evidence

would

"weaken

the

ability

of the

state

to

protect those

in

society

who are

most vulnerable

to

criminal activity," including women

and the

poor.

3