Notes

• Author: Kent Roach
• Pages: 431-500

431

Notes

Preface to the First Edition

1 Throughout this bo ok, the short form “Court,” with a capital “C,” is re-

served for the Supreme Court of Canada .

2 On the basis of my one year as a clerk and my subsequent academic ca-

reer, Professors Morton and Knopff character ize me as a member of “the

jurocracy.” F.L. Morton and Rainer Knopff, T he Charter Revolution an d the

Court Party (Peterboroug h: Broadview Press, 2000) at 112. If only they h ad

known about my work for what they call the Cour t Party! When cases I have

been involved in are discussed i n the chapters that follow, I will indicate my

involvement. For the record, I have represented Aboriginal Lega l Services

of Toronto in Williams and Mank we (screening jurors for racial prejudice),

Corbière (Charter r ight of non-resident Indian band members to vote in band

elections), Gl adue and Wells (sentencing Aboriginal offenders), Golden (con-

stitutionality of st rip searches), and Sauvé II (prisoner voting rights under

the Ch arte r). I have also represented the Canadian C ivil Liberties Association

in Hill (libel and free ex pression), Stillman (exclusion of evidence under

s. 24(2) of the Ch arte r), and Latimer (cons titutionality of mandatory life im-

prisonment). I have represented the Ontario Cr iminal Lawyers Association

in Dunedin Constr uction (costs as a Charte r remedy) and the Ontario Metis

Associat ion in Perry and Lovelace (rights of the Met is and non-status Indians).

3 See my Du e Process and Victims’ Rights. T he New Law and Politics of Crim-

inal Justice (‘ Toronto: University of ‘Toronto Press, 199 9); Constitutional

Remedies in Canada (Aurora: Canada Law Book, as updated); “The Effects

of the Canadian Cha rter of Rights on Criminal Justice” (1999) 33 Israel

Law Revie w 607; “The Attorney General and the C harter Revisited” (2000)

432

notes for pages x–9

50 University of Toronto Law Journal 1; and “C hief Justice Lamer and Some

Myths about Judicial Act ivism” (2000) 5 Canadian Criminal Law Revie w 21.

On my understanding of t he legal process, see “What’s New and Old about

the Legal Process” (1997) 47 University of Toronto Law Journa l 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 ta ke

responsibil ity for that,” St. John’s Telegram, 12 October 1999, 6.

3 “Ex-premiers call for the use of cha rter’s ‘safety valve,’” National Post, 1 March

1999, A1. The f‌irst quotation is from Lou gheed and the second is from

Bla kene y.

4 He added, “I’m not saying that’s the case now, but I personally would favour

reconsidering a certai n number of decisions of the court.” Cristin Schm-

itz, “Supreme Court goes ‘too far’: Judge,” National Post, 13 Januar y 2001,

A1, A7; Cristin Sc hmitz, “Settle native issues with ta lks: Judge,” National

Post, 15 Januar y 2001, A4. Subsequent complaints by Aboriginal groups

and defence lawyers that they could not receive a fai r hearing from Justice

Bastarache were dismissed by t he Canadian Judicial Council. Ki rk Makin,

“Accusations against judge rejected,” Globe and Mail, 1 7 March 2001, A7.

5 Kirk Makin, “Lamer wor ries about public backlash,” Globe and Mail, 6 Feb-

ruary 1999, A l; Luiza Chwialkowska, “Rein in lobby groups, senior judges

suggest,” National Post, 6 April 2000, A 1.

6 Janice Tibbetts, “Lamer att acks Alliance ‘yelping,”’ National Post, 1 4 April

2001, A1 .

7 K irk Makin “Canadians believe Supreme Court r ulings are inf‌luenced by

politics: p oll” Globe and Mail July 3, 2001 A1.

8 Alexander Bicke l, The Least Dangerous Branch: Th e Supreme Court at the Bar

of Politics, 2d ed. (New Haven: Yale University Press, 1986) at 1.

9 Chief Justice Antonio L amer as quoted in F.L. Morton and Rainer K nopff,

The Char ter Revolution and the Court Par ty (Peterborough: Broadv iew Press,

2000) at 13 .

10 Preston Mannin g, “Strong Roots, Bright Future,” Reply to the Speech from

the Throne, October 1999 at 12.

11 Alan Cair ns, Reconf‌igurations (Toronto: McClelland & Stewart, 1995), chap-

ter 4.

12 Morton and Knopff, The C harter Revolution and the Cour t Party.

13 F.L. Morton, Peter Russel l, and Troy Riddell, “The Ca nadian Charter of

Rights and Freedoms: A Descript ive Analysis of the First Decade” (1995) 5

433

notes for pages 9–18

National Journal of Con stitutional Law 1 at 5; James Kelly, “The Charter of

Rights and Freedoms and the Rebala ncing of Liberal Constitutionalism in

Canada” (1999) 37 Osgoode Hall Law Journ al 625 at 636.

14 Interest ingly, those who raise concerns about excessive civil litigation in

Canada, like those who rai se concerns about Chart er activism, ofte n ignore

important str uctural differences between A merican and Canadian law. In

Canada, as almost ever ywhere else in the world, the losing party i n civil

litigation must pay a signif‌ic ant amount of the costs incurred by the winner.

The American r ule of no cost shifting, combined with the heavy u se of

contingency fees, can make even u nsuccessful litigation almost costless. See

Kent Roach and Michael Trebilcock, “Private Enforcement of Competition

Laws” (1996) 34 Osgoode Hall Law Jour nal 461.

15 T here is disagreement on the exact number of cases that results in leg isla-

tive replies. Some argue that legislatu res have crafted replies in about two-

thirds of cases. See Peter Hogg and Al lison Bushell, “The Charter Dia logue

between Cour ts and Legislatures (or Perhaps the Charter of Rig hts Isn’t a

Bad Thing after A ll” (1997) 35 Osgoode Hall Law Journal 75. Other s argue

that there have been meanin gful legislative replies in only about a third

of the cases. See Chri stopher Manfredi and James Kelly, “Six Degrees of

Dialogue: A Response to Hogg and Bushell” (1999) 37 Osgoode Ha ll Law

Journal 513 . My approach will not be a quant itative one that attempts to

provide a scientif‌ic measure of activ ism, but a qualitative one that focuses

on the Court’s major decisions in a wide var iety of constitutional contexts.

Quantitative ana lysis can be useful, but the issues of whether courts a re

usurping democr acy and deciding cases legitimately are far too va lue laden

to be resolved by a battle over num bers. Peter Hogg and Allison Thornton,

“Reply to ‘Six Degrees of Dialogue”’ (1999) 37 Osgood e Hall Law Journal 529.

16 Chief Justice McLac hlin has identif‌ied some of the myths of judicial ac tiv-

ism under the Ch art er. They are t he myth 1) that the Charte r for the f‌irst

time bestowed individua l rights on Canadians; 2) that it created absolute

rights that the leg islature cannot abridge; 3) that it replaced parliamentary

supremacy with judicia l supremacy; 4) that judges can decline to decide

Charte r issues; 5) that criminals “walk ” under the Charter; and 6) that

the courts and legislat ures are adversaries. Beverley McLachlin, “Cha rter

Myths” (1999) 33 University of Britis h Columbia Law Review 23.

17 R. v. Mills (1999), 139 CCC (3d) 321 at paras. 57–58; Vrie nd v. Alberta, [19 98]

1 SCR 493 at para. 139.

Chapter 2: The Endless American Debate

1 Federalist 78 and Federalist 81 in A lexander Hamilton, James Madison, and

John Jay, The Fe deralist Papers (New York: Mentor, 1961) at 465, 485.