Judicial Activism before the Charter
| Author | Kent Roach |
| Pages | 35-51 |
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Chapter
3
35
Judicial
Activism before
the
Charter
Most
people think that judicial activism
was not a
problem
in
Canada
before
Prime Minister Pierre
Trudeau
gave
law
professors
and
lawyers
the
gift
of the
Charter.
In
fact,
complaints that
the
courts were subvert-
ing
the
intent
of the
constitution, making bone-headed decisions,
and
usurping
the
decisions
of
elected governments were made long
before
Canadians
ever heard
of the
Charter
or Mr.
Trudeau. Indeed, judicial
invalidation
of the
Canadian version
of the New
Deal
in the
1930s pro-
voked
a
greater constitutional crisis
than
in the
United States.
In
Canada
there
was no
switch
in
time that saved nine
and the
judiciary
did not
back
down.
The
Canadian response
was
dramatic,
as
both
the
constitu-
tion
and the
Court were permanently changed.
The
involvement
of
courts with civil liberties
and the
rights
of
minorities
is
also
not a
creation
of the
Charter.
From Confederation
on,
minorities appealed
to the
courts
to
stop
the
majority
from
ignoring
or
abolishing their constitutional rights
to
bilingual statutes
or
denomina-
tional schools,
to
honour Aboriginal land
and
treaty rights,
or to
oppose
public
and
private
forms
of
discrimination.
The
difference
under
the
Charter
is not
that minorities take their claims
to
court
or
that litigants
are
assisted
by
organized advocacy groups,
but
that they
win the odd
case.
In the few
pre-Charter
cases
in
which
the
Court
enforced
rights
it
thought
were essential
to
democracy,
the
decisions were criticized
as
undemocratic
and
overly creative
forms
of
judicial activism.
The
Canadian
commitment since 1867
to
federalism
and
constitutionalism
has
meant that
our
courts have always exercised power
and
tempered
majority
rule. Those
who
portray
the
Charter
as an
entirely novel
form
of
judicial power
and
restriction
on
majority rule
are
ignoring
the
les-
sons
of our
history.
Historical
Cases
of
Minorities Going
to
Courts
After
examining
the
criminal trials
of a
variety
of
Canadians rebels,
from
the
Metis leader
Louis
Kiel
to the
separatist terrorists
of the
October
crisis
of
1970, Canadian historian Kenneth
McNaught
conclud-
ed
that Canadian courts
had
resisted being used
as
instruments
of
polit-
ical
change. Critics
who see the
Charter
as a
revolutionary change
in
Canadian
politics
l
have relied
on
this
opinion, even though
Professor
36
PART
1:
WHAT
IS
JUDICIAL
ACTIVISM?
McNaught
took pains
to
exclude
the
"hundreds
of
test cases" that
fell
outside
his
definition
of
political
trials.2
Canadian history
is
full
of
exam-
ples
of
minorities being
forced
to
take test cases
to
court because gov-
ernments were unwilling
to
respond
to
their grievances
or
were eager
to
hand
off
difficult
issues
to the
courts.
Kiel's
Red
River
Rebellion
led to
constitutional guarantees through
the
Manitoba
Act of
1870
for
both
the
French language
and
Roman
Catholic
schools.
As the
flood
of
immigrants into
the
province swamped
the
original Metis
majority,
however,
the
Manitoba legislature
in
1890
abolished
the use of
French
in the
legislature along with public support
for
separate schools. There would
be no
more minority rights.
The
fed-
eral government could have
fixed
the
problem
by
vetoing
the
legislation
or
enacting
its own
remedial legislation,
but it was
reluctant
to be
criti-
cized
for
intervening
in
provincial
affairs,
especially
on
behalf
of a
minority.
The
Franco-Manitoban minority went
to
court
and
secured
judgments
from
the
County Court
of St.
Boniface
in
1892, 1909,
and
again
in
1976 that legislation making English
the
only legislative lan-
guage
violated
the
clear requirements
of
bilingualism entrenched
in the
Manitoba
Act. Unfortunately,
the
government
of
Manitoba ignored
these
rulings.
To be
fair,
it did
tell
the
Franco-Manitoban
who won his
1976
challenge
to a
unilingual
parking ticket that
he
could have
a
French
translation
of the
relevant legislation
— if he was
prepared
to pay
$17,000
in
translation costs!
In
1985
the
Supreme Court
had to
supervise
the
translation
of all of
Manitoba's unilingual laws,
a
process
that
took
a
number
of
years.
The
Catholic minority
in
Manitoba looked
first
to the
federal gov-
ernment
to
intervene when public support
for
Catholic schools
was
abolished,
but it
gladly passed
the
delicate issue
of
minority rights
to the
courts.
It
took
five
years
of
constant litigation
by the
Catholic minority,
including
two
trips
to the
Supreme
Court
and two
more
to
Canada's
then
highest court,
the
Judicial Committee
of the
Privy Council
in
England,
for
the
courts
to
toss
the
political
hot
potato back
to the
federal govern-
ment: although
no
legally enforceable rights
had
been violated,
the
courts indicated,
the
federal
government could intervene.
The
politi-
cians could
no
longer ignore
the
issue,
and the
1896 federal election
was
fought
on the
divisive Manitoba schools question.
Wilfrid
Laurier
became
the
country's
first
francophone prime minister
in
large part
by
promising
the
sunny ways
of
compromise. They ended
up not so
sunny
for
the
Catholic
and
francophone minority, which
was
limited
to
thirty
minutes
of
religious
and
language instruction
at the end of the
school
day.3
The
Charter
does
not
represent
the first
time that
minorities
have
gone
to
court
to
obtain redress
from
a
legislature dominated
by the
inter-
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