The Charter's Influential Response to Judicial Activism

• Author: Kent Roach
• Pages: 59-77

59

chapter four

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. Pri me 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 Chart er could be an instrument of na-

tional unity as well as the expression of a liberal concern for the rights

of individuals and minorities. Although Trudeau leaned towards ju-

dicial supremacy, he knew, as a constitutional scholar, that the courts

were unpredictable. They had interpreted the division of powers in a

manner never imagined by the framers of the 1867 constitution and,

south of the border, they continued to surprise many people.

Provincial opposition to the Chart er came from both t he 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 Depres-

sion. Their suspicions about the Supreme Court in Ottawa were not

alleviated when it failed to protect provincial jurisdiction over resour-

ces from the federal National Energy Program in 1980. The provinces

part one: what is judicial activism?

60

were also familiar with the A merican experience with judicial activism

and feared that a bill of rights would give the Court in Ot tawa the f‌inal

word on many social and regulatory matters within their jurisdiction.

They would be especially affected by t he 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 Char ter might not have been

able to agree on a document that combined the benef‌its of strong ju-

dicial review and strong legislative review of judicial review. Left to

its own devices, the federal government might have produced a bill

of rights without a limitation clause and certainly without an over-

ride. The provinces might have retained legislative supremacy or a

bill of rights that preserved as much legislative supremacy as possible.

Together, however, the two levels of government devised a creative

compromise that combined the virtues of both judicial and legislative

activism. Non-governmental groups also played an important role. The

federal government was prepared to water down many of the rights of

the Char ter to get the provinces on side. It was most committed to min-

ority language ri ghts, 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 Char-

te r, 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 recommendations, and the result was a much stronger Charter

than one that would have emerged from backroom intergovernmental

wheeling and dealing.

The Chart er 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. Propert y rights were omit ted,

and aff‌irmative action was specif‌ic ally 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 reme dies for const itutional violations was speci f‌ically rec-

ognized. Every one of the broad and robust rights in the Charter — the

fundamental freedoms, democratic rights, mobility rights, legal rights,