The Constrained Creativity of Judicial Law Making

• Author: Kent Roach
• Pages: 131-160

131

chapter seven

The Constrained Creativity of

Judicial Law Making

The charter is littered with vague phrases that give judges con-

siderable room to make law. Already, judges have interpreted the

Chart er in ways that the framers did not expect. Parliamentarians as-

sured both pro-choice and pro-life groups that the Charte r’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 Char ter 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 jus-

tice into disrepute. The Court, however, has created an absolutist ex-

clusionary 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 r ight to commercial f‌ishing in a refer-

ence to the maintenance of 11truckhouses 11 in a 1760 treaty. It has

mandated a complex process for determining judicial salar ies over an

impassioned dissent that it was exceeding its role by inventing a pro-

cedure nowhere spelled out in the constitution. It also relied on unwrit-

ten constitutional principles to suggest that, in some circumstances,

part two: the extent of judicial activism

132

the rest of Canada should negotiate separation with Quebec. The lan-

guage of the constitution and the intent of the framers do not seem to

have constra ined 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 Char ter 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 undemocratic

judicial law making is central to critiques 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 Ch art er. Reasonable people disagree about what is involved in

fundamental justice or what brings the administration of justice into

disrepute. Moreover, individual judges do make a difference. Justice

Michel Bastarache has indicated that, on criminal matters, he is more

conservative than the majority of the Court, and par ticularly 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 es-

tablish that judicial creativity is not open-ended, but rather constrained

and guided by the need for judges to provide a good-faith interpreta-

tion of the text of the Cha rt er, precedents, and traditions. The essence

of the judicial activism critique is not that judges must make judg-

ment 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 Ch ar ter.

The Court’s Interpretative Methodology

chief justice brian dickson was a n innovative judge who, even before

the enactment of the Ch ar te r, was prepared to reshape important areas

of criminal law, family law, and private law. In one of the f‌irst Charte r

cases he set out an approach to interpreting the Charte r that has inf‌lu-