The Charter's Influential Response to Judicial Activism
| Author | Kent Roach |
| Pages | 53-68 |
Chapter
4
53
The
Charter's
Influential
Response
to
Judicial Activism
Those
who
created
the
Charter
in
1982
were well aware
of the
benefits
and the
dangers
of
judicial activism. Prime Minister Pierre Trudeau,
who,
because
of his
radical reputation,
had
been
unable
to get a job as a
law
professor
in
Quebec during
the
Duplessis regime,
saw a
lack
of
respect
for the
rights
of
individuals
and
minorities
as an
obstacle
to
democracy
and a
sense
of
Canadian citizenship.
For
him,
a
Supreme
Court
interpreting
a
Charter
could
be an
instrument
of
national unity
as
well
as the
expression
of a
liberal concern
for the
rights
of
individuals
and
minorities. Although
Trudeau
leaned towards judicial supremacy,
he
knew,
as a
constitutional
scholar,
that
the
courts were unpredictable.
They
had
interpreted
the
division
of
powers
in a
manner never imag-
ined
by the
framers
of the
1867 constitution and, south
of the
border,
they continued
to
surprise many people.
Provincial opposition
to the
Charter
came
from
both
the
left
(the
social democratic government
of
Saskatchewan)
and the
right (the con-
servative
governments
of
Manitoba
and
Alberta).
The
western premiers
were
suspicious
of
giving
a
federally appointed Supreme Court
in
Ottawa
the
final
word
on
matters
of
social
or
economic policy. They
remembered
the New
Deal
and the
Social Credit cases
of the
1930s,
in
which
the
courts
had
thwarted attempts
by
both
the
federal
and the
provincial governments
to
alleviate
the
suffering
of the
Depression.
Their suspicions about
the
Supreme Court
in
Ottawa were
not
alleviat-
ed
when
it
failed
to
protect provincial jurisdiction over resources
from
the
federal National Energy Program
in
1980.
The
provinces were also
familiar
with
the
American experience with judicial activism
and
feared
that
a
bill
of
rights would give
the
Court
in
Ottawa
the
final
word
on
many social
and
regulatory matters within their jurisdiction. They
would
be
especially
affected
by the
recognition
of
property
and
Aboriginal
rights, which would
affect
their jurisdiction over property
and
natural resources,
as
well
as due
process rights, which would
bind
their police
and
prosecutors.
Most
of the
provinces
favoured
the
reten-
tion
of
legislative supremacy.
As
individuals, those
who
framed
the
Charter
might
not
have been
able
to
agree
on a
document that combined
the
benefits
of
strong judi-
cial
review
and
strong
legislative
review
of
judicial review.
Left
to its
own
devices,
the
federal
government might have produced
a
bill
of
54
PART
1:
WHAT
IS
JUDICIAL
ACTIVISM?
rights without
a
limitation clause
and
certainly without
an
override.
The
provinces
might have retained legislative supremacy
or a
bill
of
rights
that preserved
as
much legislative supremacy
as
possible.
Together,
how-
ever,
the two
levels
of
government devised
a
creative compromise that
combined
the
virtues
of
both judicial
and
legislative activism.
Non-gov-
ernmental groups also played
an
important role.
The
federal govern-
ment
was
prepared
to
water down many
of the
rights
of the
Charter
to
get
the
provinces
on
side.
It was
most committed
to
minority language
rights,
not due
process rights
for
those accused
of
crime,
or
equality
rights
for
women
or
minorities,
or
land
or
treaty rights
for
Aboriginal
people.
When
the
provinces
did not
agree
to a
weak
Charter,
the
federal
government allowed social groups
—
defence
lawyers
and
civil libertar-
ians, women's
and
other equality-seeking groups,
and
Aboriginal groups
—
to
participate
in the
drafting.
It
often
followed
their recommenda-
tions,
and the
result
was a
much stronger
Charter
than
one
that would
have
emerged
from
backroom intergovernmental wheeling
and
dealing.
The
Charter
that
all
governments except
the
separatist government
of
Quebec eventually agreed upon
was
innovative.
It was
certainly dif-
ferent
from
the
American
Bill
of
Rights.
Property rights were omitted,
and
affirmative
action
was
specifically allowed
for
both disadvantaged
groups
and
residents
of
provinces with higher than average unemploy-
ment.
The
ability
of
courts
to
strike down unconstitutional legislation
and
award
remedies
for
constitutional
violations
was
specifically recog-
nized.
Every
one of the
broad
and
robust rights
in the
Charter
—
the
fun-
damental
freedoms,
democratic rights, mobility rights, legal rights,
equality rights,
and
minority language rights
—
was
subject
to a
general
limitation provision
that
allowed governments
to
enact laws
that
imposed
reasonable limits
that
were demonstrably
justified
in a
free
and
democratic
society.
As a
final
failsafe,
legislatures
could
enact
legisla-
tion notwithstanding
the
fundamental
freedoms
and the
legal
and
equality rights.
This
override
of
rights would expire
after
five
years,
but
could
be
renewed.
The
Charter
was a
unique
and
innovative Canadian
invention:
it
allowed strong courts interested
in
protecting rights
to co-
exist with strong legislatures, which could take democratic responsibili-
ty for
limiting
and
even temporally overriding rights
as
interpreted
by
the
courts.
The
Charter
was the
product
of
people
who
understood
the
dangers
of
unfettered legislative
and
judicial supremacy.
The
Charter's
combination
of
strong courts that could
enforce
rights
and
strong legislatures that could limit
or
deny rights
has
been
influential
in the
development
of
subsequent bills
of
rights.
Trudeau,
a
self-proclaimed
citizen
of the
world, must have been proud
to see how
widely
the
innovations
in the
Charter
have been embraced abroad.
New
Zealand,
Israel,
and
South
Africa
have
all
copied
the
general reasonable-
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