Judicial Activism before the Charter

• Author: Kent Roach
• Pages: 39-57

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chapter three

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 C har ter. In fact, complaints that the courts

were subverting 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 provoked 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 constitution 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 Ch ar ter. From Confeder ation 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

Chart er 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 Cour t enforced rights it

thought were essential to democracy, the decisions were criticized as un-

democratic 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.

part one: what is judicial activism?

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Those who portray the Char ter as an entirely novel form of judicial power

and restriction on majority rule are ignoring the lessons of our history.

Historical Cases of Minorities Going to Courts

after examinin g the crimina l trials of a variet y of Canadians rebels,

from the Métis leader Louis Riel to the separatist terrorists of the Oc-

tober crisis of 1970, Canadian historian Kenneth McNaught concluded

that Canadian courts had resisted being used as instr uments of polit-

ical change. Critics who see the Char ter as a revolutionary change in

Canadian politics1 have relied on this opinion, even though Professor

McNaught took pains to exclude the “hundreds of test cases” that fell

outside his def‌inition of political trials.2 Canadian history is f ull of ex-

amples of minorities being forced to take test cases to court because

governments were unwilling to respond to their grievances or were

eager to hand off diff‌icult issues to the courts.

Riel’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 Métis majority, however, the Manitoba legislature in 1890

abolished the use of French in the legislature along with public sup-

port for separate schools. There would be no more minority rights. The

federal government could have f‌ixed the problem by vetoing the legis-

lation or enacting its own remedial legislation, but it was reluctant to

be criticized for intervening in provincial af fairs, especially on behalf

of a minority. The Franco-Manitoban minority went to court and se-

cured judgments from the County Court of St. Boniface in 1892, 1909,

and again in 1976 that legislation making English the only legislative

language violated the clear requirements of bilingualism entrenched

in the Manitoba Ac t. Unfortunately, the government of Manitoba ig-

nored 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 pre-

pared 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