The Constrained Creativity of Judicial Law Making
| Author | Kent Roach |
| Pages | 115-141 |
Chapter
7
115
The
Constrained
Creativity
of
Judicial
Law
Making
The
Charter
is
littered with vague phrases that
give
judges considerable
room
to
make law. Already, judges have interpreted
the
Charter
in
ways
that
the
framers
did not
expect. Parliamentarians assured both pro-
choice
and
pro-life
groups that
the
Charter's
guarantee
of
fundamental
justice
was
neutral
on
abortion because
it
protected
fair
process alone
and not
substantive values such
as
privacy.
Yet
only three years
after
the
Charter
was
drafted,
the
Supreme Court rejected
the
dichotomy
between substantive
and
procedural fairness. Three additional years
later,
it
invalidated
the
abortion law.
The
framers
also believed that
the
Canadian
rule
for the
exclusion
of
unconstitutionally obtained evidence
would
be
much more moderate than
the
American rule because
it
only
required exclusion when,
in all the
circumstances,
the
admission
of the
evidence would bring
the
administration
of
justice into disrepute.
The
Court,
however,
has
created
an
absolutist exclusionary rule.
In
1982
the
framers
decided
not to
include sexual orientation
as a
prohibited ground
of
discrimination,
but in
1995
the
Supreme Court unanimously held that
it was a
prohibited ground.
In the
Marshall
case that
led to
violence
in
Burnt
Church,
New
Brunswick,
the
Court
found
an
Aboriginal right
to
commercial
fishing
in a
reference
to the
maintenance
of
"truckhouses"
in a
1760 treaty.
It has
mandated
a
complex process
for
determining
judicial
salaries over
an
impassioned dissent that
it was
exceeding
its
role
by
inventing
a
procedure nowhere spelled
out in the
constitution.
It
also relied
on
unwritten constitutional principles
to
suggest that,
in
some circumstances,
the
rest
of
Canada
should negotiate separation
with
Quebec.
The
language
of the
constitution
and the
intent
of the
framers
do not
seem
to
have
constrained
the
judges.
The
critics
of
judicial activism look
to
these cases
as
proof that
judges
are
free
to
inject
their
own
subjective preferences into
the
law.
Those
on the
right criticize judges
for
departing
from
the
clear
intent
or
words
of the
framers.
Those
on the
left
stress
the
indeterminacy
of the
vague
phrases
of the
Charter
and of
adjudication
in
general.
Both
argue
that judges will read
their
biases
and
preferences into
the
Charter
and
that this gloss
is
illegitimate because
no one
elected
the
judges.
The
right
fears
judicial preferences
for
unrepresentative minorities, while
the
left
fears
judicial favouritism towards corporations
and
other advan-
taged
members
of
society.
The
idea
of
unconstrained
and
undemocrat-
ic
judicial
law
making
is
central
to
critiques
of
judicial activism.
116
PART
2: THE
EXTENT
OF
JUDICIAL
ACTIVISM
In
this
chapter,
I
will examine
the
claims
of
judicial
law
making
made
by the
critics
of
judicial activism.
I
will make
no
attempt
to
deny
that judges exercise creativity
as
they interpret
the
vague provisions
of
the
Charter.
Reasonable people disagree about what
is
involved
in
fun-
damental justice
or
what brings
the
administration
of
justice into disre-
pute.
Moreover,
individual judges
do
make
a
difference.
Justice Michel
Bastarache
has
indicated that,
on
criminal matters,
he is
more conser-
vative
than
the
majority
of the
Court,
and
particularly
former
Chief
Justice Antonio
Lamer.1
Not
many would disagree. Nevertheless,
I
will
deal
the
critics
of
judicial activism
a
significant blow
if I can
establish
that judicial creativity
is not
open-ended,
but
rather constrained
and
guided
by the
need
for
judges
to
provide
a
good-faith
interpretation
of
the
text
of the
Charter,
precedents,
and
traditions.
The
essence
of the
judicial
activism critique
is not
that judges must make judgment calls
—
surely that
is why we
have judges
and
appeal courts
—
but
rather
that
they
are
free
to
read their
own
view
of the
world
and the
good
life
into
the
Charter.
The
Court's
Interpretative
Methodology
Chief
Justice
Brian
Dickson
was an
innovative judge who, even
before
the
enactment
of the
Charter,
was
prepared
to
reshape important areas
of
criminal law,
family
law,
and
private law.
In one of the first
Charter
cases
he set out an
approach
to
interpreting
the
Charter
that
has
influ-
enced
all
those
who
have subsequently interpreted that document.
He
conceded
that
the
meaning
of the
Charter
"cannot
be
determined
by
recourse
to a
dictionary,
nor for
that matter,
by
reference
to the
rules
of
statutory construction." Invoking
the
famous
living-tree metaphor
employed
by the
Privy Council
to
hold that women were persons
who
could
be
appointed
to the
Senate,
he
argued that "the task
of
expound-
ing a
Constitution
is
crucially
different
from
that
of
construing
a
statute."2
These statements have
led
some
to
accuse
the
Court
of
going
beyond
the
bounds
of
legitimate interpretation
— of
changing elms
to
willows.3
Justice Bertha
Wilson,
who was
even more inclined
than
Chief
Justice
Dickson
to
strike down laws under
the
Charter,
warned
that
while
the
living-tree metaphor
was
"harmless
... so
long
as it is
used
merely
to
suggest that
a
constitution must adapt
and
grow
to
meet mod-
ern
realities,"
it
could
"become
dangerous
and
anti-democratic
if it
were
used
to
justify
the
shaping
of the
constitution according
to the
personal
values
of
individual
judges."4
Viewed
in the
abstract, Chief Justice Dickson's statements about
the
differences
between statutory
and
constitutional interpretation
are
misleading: they underestimate
the
creativity required when judges
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