Notes
| Author | Kent Roach |
| Pages | 297-343 |
Notes
Preface
1
Throughout
this
book,
the
short
form
"Court,"
with
a
capital
"C,"
is
reserved
for the
Supreme Court
of
Canada.
2
On the
basis
of my one
year
as a
clerk
and my
subsequent
academic
career,
Professors Morton
and
Knopff
characterize
me as a
member
of
"the
jurocracy."
EL.
Morton
and
Rainer
Knopff,
The
Charter
Revolution
and
the
Court
Party
(Peterborough: Broadview Press,
2000)
at
112.
If
only
they
had
known about
my
work
for
what they call
the
Court Party!
When
cases
I
have been involved
in are
discussed
in the
chapters that
follow,
I
will indicate
my
involvement.
For the
record,
I
have represent-
ed
Aboriginal Legal Services
of
Toronto
in
Williams
and
Mankwe
(screen-
ing
jurors
for
racial prejudice),
Corbiere
(Charter
right
of
non-resident
Indian
band
members
to
vote
in
band
elections),
Gladue
and
Wells
(sen-
tencing Aboriginal
offenders),
Golden
(constitutionality
of
strip search-
es),
and
Sauve
II
(prisoner voting rights under
the
Charter).
I
have also
represented
the
Canadian Civil Liberties Association
in
Hill
(libel
and
free
expression),
Stillman
(exclusion
of
evidence under
s.
24(2)
of the
Charter),
and
Latimer
(constitutionality
of
mandatory
life
imprison-
ment).
I
have represented
the
Ontario Criminal Lawyers Association
in
Dunedin
Construction
(costs
as a
Charter
remedy)
and the
Ontario Metis
Association
in
Perry
and
Lovelace
(rights
of the
Metis
and
non-status
Indians).
3 See my Due
Process
and
Victims'
Rights:
The New Law and
Politics
of
Criminal
Justice
(Toronto: University
of
Toronto
Press, 1999);
Constitutional
Remedies
in
Canada
(Aurora:
Canada
Law
Book,
as
updat-
ed);
"The
Effects
of the
Canadian Charter
of
Rights
on
Criminal Justice"
(1999)
33
Israel
Law
Review
607; "The Attorney General
and the
Charter
Revisited"
(2000)
50
University
of
Toronto
Law
Journal
1; and
"Chief
Justice Lamer
and
Some Myths about Judicial Activism" (2000)
5
Canadian
Criminal
Law
Review
21.
On my
understanding
of the
legal
process,
see
"What's
New and Old
about
the
Legal Process" (1997)
47
University
of
Toronto
Law
Journal
363.
PART
ONE
Chapter
1:
The
Supreme
Court
on
Trial
1
Canada,
House
of
Commons,
Debates,
1
March 2001
at
1400.
2
Richard
Gywn,
"If
there
is
anarchy today,
the
Supreme Court
has to
take
responsibility
for
that,"
St.
John's
Telegram,
12
October 1999,
6.
297
298
NOTES
TO
PAGES
4-11
3
"Ex-premiers call
for the use of
charter's
'safety
valve,'"
National
Post,
1
March
1999,
Al.
The
first
quotation
is
from
Lougheed
and the
second
is
from
Blakeney.
4
He
added, "I'm
not
saying that's
the
case now,
but I
personally would
favour
reconsidering
a
certain number
of
decisions
of the
court," Cristin
Schmitz,
"Supreme Court goes
'too
far':
Judge,"
National
Post,
13
January
2001,
Al,
A7;
Cristin Schmitz, "Settle native issues with talks: Judge,"
National
Post,
15
January 2001,
A4.
Subsequent complaints
by
Aboriginal
groups
and
defence lawyers that they could
not
receive
a
fair
hearing
from
Justice Bastarache were dismissed
by the
Canadian Judicial
Council.
Kirk
Makin, "Accusations against judge
rejected,"
Globe
and
Mail,
17
March 2001,
A7.
5
Kirk
Makin, "Lamer worries about public
backlash,"
Globe
and
Mail,
6
February 1999,
Al;
Luiza
Chwialkowska,
"Rein
in
lobby groups, senior
judges
suggest,"
National
Post,
6
April
2000,
Al.
6
Janice Tibbetts, "Lamer attacks Alliance
'yelping,'"
National
Post,
14
April
2001,
Al.
7
Kirk
Makin "Canadians believe Supreme Court rulings
are
influenced
by
politics: poll"
Globe
and
Mail
July
3,
2001
Al.
8
Alexander Bickel,
The
Least
Dangerous
Branch:
The
Supreme
Court
at the
Bar
of
Politics,
2d ed.
(New Haven:
Yale
University Press, 1986)
at
1.
9
Chief Justice Antonio Lamer
as
quoted
in EL.
Morton
and
Rainer
Knopff,
The
Charter
Revolution
and the
Court
Party
(Peterborough:
Broadview
Press,
2000)
at 13.
10
Preston Manning, "Strong
Roots,
Bright Future," Reply
to the
Speech
from
the
Throne, October 1999
at 12.
11
Alan Cairns,
Reconfigurations
(Toronto: McClelland
&
Stewart, 1995),
chapter
4.
12
Morton
and
Knopff,
The
Charter
Revolution
and the
Court
Party.
13
F.L. Morton, Peter Russell,
and
Troy
Riddell,
"The Canadian Charter
of
Rights
and
Freedoms:
A
Descriptive Analysis
of the
First Decade" (1995)
5
National
Journal
of
Constitutional
Law 1 at 5;
James
Kelly,
"The Charter
of
Rights
and
Freedoms
and the
Rebalancing
of
Liberal Constitutionalism
in
Canada"
(1999)
37
Osgoode
Hall
Law
Journal
625 at
636.
14
Interestingly, those
who
raise concerns about excessive civil litigation
in
Canada,
like those
who
raise concerns about
Charter
activism,
often
ignore
important structural differences between American
and
Canadian
law.
In
Canada,
as
almost everywhere else
in the
world,
the
losing party
in
civil
litigation
must
pay a
significant amount
of the
costs
incurred
by
the
winner.
The
American rule
of no
cost
shifting,
combined with
the
heavy
use of
contingency
fees,
can
make even unsuccessful litigation
almost costless.
See
Kent
Roach
and
Michael
Trebilcock,
"Private
Enforcement
of
Competition
Laws"
(1996)
34
Osgoode
Hall
Law
Journal
461.
15
There
is
disagreement
on the
exact number
of
cases that results
in
leg-
islative replies. Some argue that legislatures have
crafted
replies
in
about
two-thirds
of
cases.
See
Peter Hogg
and
Allison Bushell, "The Charter
NOTES
TO
PAGES
11-18
299
Dialogue
between Courts
and
Legislatures
(or
Perhaps
the
Charter
of
Rights
Isn't
a Bad
Thing
after
All" (1997)
35
Osgoode
Hall
Law
Journal
75.
Others argue that there have been meaningful legislative replies
in
only
about
a
third
of the
cases.
See
Christopher
Manfredi
and
James
Kelly,
"Six
Degrees
of
Dialogue:
A
Response
to
Hogg
and
Bushell"
(1999)
37
Osgoode
Hall
Law
Journal
513.
My
approach will
not be a
quantitative
one
that
attempts
to
provide
a
scientific measure
of
activism,
but a
quali-
tative
one
that
focuses
on the
Court's
major
decisions
in a
wide variety
of
constitutional contexts. Quantitative analysis
can be
useful,
but the
issues
of
whether courts
are
usurping democracy
and
deciding cases
legitimately
are far too
value laden
to be
resolved
by a
battle over num-
bers. Peter Hogg
and
Allison Thornton,
"Reply
to
'Six
Degrees
of
Dialogue'"
(1999)
37
Osgoode
Hall
Law
Journal
529.
16
Chief Justice McLachlin
has
identified some
of the
myths
of
judicial
activism under
the
Charter.
They
are the
myth
1)
that
the
Charter
for
the
first
time bestowed individual rights
on
Canadians;
2)
that
it
created
absolute
rights that
the
legislature cannot abridge;
3)
that
it
replaced par-
liamentary supremacy with judicial supremacy;
4)
that judges
can
decline
to
decide
Charter
issues;
5)
that criminals
"walk"
under
the
Charter;
and 6)
that
the
courts
and
legislatures
are
adversaries. Beverley
McLachlin,
"Charter Myths" (1999)
33
University
of
British
Columbia
Law
Review
23.
17
R.v.
Mills
(1999),
paras.
57-58;
Vriend
v.
Alberta,
para. 139.
Chapter
2: The
Endless
American
Debate
1
Federalist
78 and
Federalist
81 in
Alexander Hamilton, James Madison,
and
John Jay,
The
Federalist
Papers
(New
York:
Mentor,
1961)
at
465, 485.
2
5
U.S.
(1
Cranch)
137
(1803).
3
Herbert
McClosky,
The
American
Supreme
Court
(Chicago: University
of
Chicago
Press, 1960)
at 43;
Samuel
Morison
et
al.,
The
Growth
of
the
American
Republic,
7th ed.
(New
York:
Oxford
University Press, 1980)
at
346.
4
Sheldon Goldman,
Constitutional
Law and
Supreme
Court
Decision-Making
(New
York:
Harper
and
Row, 1982)
at 33.
5
Alexis
de
Tocqueville,
Democracy
in
America (Garden City: Doubleday,
1969)
at
151.
6
Dred
Scott
v.
Sanford,
19
Howard
393
(1857).
7
Louis
Fisher,
Constitutional
Dialogues:
Interpretation
as
Political
Process
(Princeton:
Princeton University Press, 1988)
at
278; Morison
et
al.,
The
Growth
of
the
American
Republic
at
595.
8 For
Lincoln,
the
case
was
binding
"so far as it
decided
in
favor
of
Dred
Scott's master
and
against
Dred Scott
and his
family,"
but was not "a
rule
of
political action
for the
people
and all the
departments
of the
govern-
ment
...
By
resisting
it as a
political rule,
I
disturb
no
right
of
property,
create
no
disorder, excite
no
mobs." Lincoln
as
quoted
in
George Swan,
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