Below is the full text of Chief Justice Joyal’s keynote address at the Canadian Constitution Foundation’s 2017 Law and Freedom Conference. This presentation was titled “The Charter and Canada’s New Political Culture: Are We All Ambassadors Now?” and was given on January 6, 2017. A video of this speech can be watched here.
Tonight, ladies and gentlemen, I feel very much like the shy and timid church organist who, on a rare Friday night, gets to sneak out to a local smoky bar and play electric piano with a group of exciting but somewhat subversive jazz musicians.
I say that in part because my talk this evening will not address many of the more mundane administrative or operational subjects about which a Chief Justice typically speaks out. Instead, my topic this evening is a topic of a more foundational nature, touching important aspects of public law.
I have entitled my talk: “The Charter AND Canada’s New Political Culture: Are We All Ambassadors Now?”
As the title might suggest, tonight, I want to talk to you about Canada’s current political culture, the Charterand the somewhat uneasy and uneven institutional relationship that exists as between the judiciary and the legislative branch.
It is my position that the new Canadian political culture has been in part, both caused by and now, very much reflects, what has been over the last 35 years, an increasing judicial dominance in that judicial/legislative institutional relationship.
The subtextual and sometimes explicit question that I want to raise this evening, is whether the state of that relationship should be so reflexively applauded and, in different ways, promoted.
Regrettably, my position this evening will be advanced with all of the superficiality and conclusory reasoning that the limits of time require and that judges generally abhor. Nonetheless, I should feel more than satisfied if my remarks provide any of you, some source or reference for future reflection.
So let’s start with some context.
Many many years ago, in my misspent youth, I completed a Master’s Thesis entitled “Traditional Canadian Political Culture Adrift in the Era of the Charter”. “Adrift” as in floating somewhat aimlessly and with uncertainty. That thesis was written in the comparatively early days of the Canadian Charter of Rights and Freedoms. Fast forward to the present day.
In 2017 and in the current era of the Charter, Canadian political culture is no longer adrift. Canadian political culture, in my humble view ladies and gentlemen, has now fundamentally changed.
For those who are concerned about maintaining an institutional balance as between a strong and robust judiciary and an equally purposeful and respected legislative branch, this fundamental change in the Canadian political culture is not without consequence.
This evening, I hope to explain why.
Political culture is an extraordinarily useful and relevant concept, especially for keen students, like yourselves, who are interested in the evolution of the Canadian Constitution and constitutional history generally.
What is political culture? Broadly defined, a political culture reflects the attitudes and beliefs that citizens and its specific institutional actors hold about the political system. Political culture can also be seen as the conglomeration of ideas and attitudes which set the parameters in which debate over policy justifications take place. A political culture is in part revealed and transmitted through a polity’s public discourse. In this context, language can both encode and shape attitudes, outlooks and assumptions about politics and institutions.
Strong hints about a political culture can also be revealed through legislation. National or local laws will frequently reflect a polity’s values and beliefs and will in the process, depending upon the manner in which the legislative “solution” is formulated and defined, highlight, emphasize and reinforce a society’s prioritization of values, attitudes and beliefs.
Political culture shapes the perception of politically relevant problems and further affects what people perceive are the appropriate areas of governmental and institutional action.
Tonight, I will suggest that Canada’s new political culture is largely dominated by attitudes and beliefs now held by a broad cross-section of the Canadian citizenry and its institutional actors, which attitudes and beliefs suggest an almost unconditional willingness to accept or endorse the idea of judicial adjudications in respect of what are often complex and even insoluble social and political problems. What were once political issues are now frequently transformed into legal issues.
This transformation of political issues into legal issues, often on the basis of new rights, has led to a new institutional dynamic as between the judiciary and the legislative branch.
Given the principle of constitutional supremacy, it is now an institutional relationship in which the legislative branch frequently occupies a diminished and even inferior role. It is in the discussions surrounding this new institutional relationship and dynamic, that incendiary questions are sometimes raised about the judicialization of politics and the politicization of the judiciary.
While this new reality may be both a cause and now, a reflection of Canada’s new political culture, it is for many who study Canadian history, an unanticipated development that was not envisioned nor necessarily desired by the 1982 compromise that led to the adoption of the Charter.
Indeed, as I will explain, the 1982 compromise was, in part, a response to those who raised institutional concerns about an enhanced policy-making role for the judiciary under the Charter. Many like the Canadian constitutional scholar, Peter Russell, feared that an enhanced judicial policy-making role would precipitate “a flight from politics”. A “flight from politics” that Russell said would cause “a deepening disillusionment with the procedures of representative government, and government by discussion as a means of resolving fundamental questions of political justice”.
You’ll hear more about the “flight from politics” later.
I set out a few minutes ago, the quixotic title of this evening’s talk, “The Charter in Canada’s New Political Culture: Are We All Ambassadors Now?” The somewhat incongruous reference to the ambassadorial role comes from a speech recently given at the University of British Columbia by Canada’s Attorney General and Minister of Justice, The Honourable Jody Wilson-Raybould. In a very genuine and earnest reference, Minister Wilson-Raybould explained to the students, that she saw herself as being “the ambassador for the Charter”.
It should be noted that the definition of the ambassadorial task includes the acts of “promoting”, “championing” and “protecting”. With her reference to the ambassadorial role, the Minister was perhaps spontaneously demonstrating through her rhetorical enthusiasm, the very institutional and attitudinal changes that so reflect the new political culture.
The Minister is hardly alone in her celebration of the Charter. To the contrary, most institutional actors in the Canadian polity seem similarly unconditional in their willingness to play a role championing and promoting the Charter.
Whether one speaks of the legal profession, the legal academy, the opposition parties of the day, the citizenry, the media and, of course, the judiciary, the spirit of “Charter values” has been enthusiastically adopted and endorsed. In other words, “Charter values” – whatever that means – is now not only an interpretative term of art emanating from Supreme Court of Canada jurisprudence, it also now serves as a somewhat self-congratulatory reference point for defining the Canadian identity.
An enthusiasm for the Charter or, as Professor Alan Cairns called it, a “Charter patriotism”, is on one level, certainly understandable. The Charter is in many ways a unique and potentially nuanced constitutional instrument that in 1982, grew out of what Edmund Burke might have identified as the particular harmony and hidden wisdom of a nation’s social and political history. There is much to admire in a document which provides important protections in relation to areas of criminal justice, minority rights, group rights, equality, and the lines demarcating the public and private sphere, more generally. Indeed, there is much to admire about how the judiciary has generally applied and enforced those rights.
Put simply, as a foundational part of Canada’s constitutional architecture, the Charter deserves our respect and demands our compliance.
Yet, to the extent that we, as Canadian citizens and we as institutional actors, rarely raise questions about the resulting new and imbalanced relationship between the judiciary and the legislative branch, and to the extent that we rarely raise connected questions about the broader implications for the Canadian polity, we risk a consequential intellectual complacency.
In a political culture without such foundational questions being raised, it is not unreasonable to ask whether we are not all ambassadors now, through complacency or by default.
Tonight, in the face of so many domestic Canadian ambassadors, I ask the question whether in Canada’s new political culture, there remains any intellectual space in which genuine concerns can be raised and debated about a potential institutional imbalance that has, and will continue to have, implications for the Canadian polity.
For the rest of my talk, I want to deal with the question I have raised by breaking it down and addressing two points:
First, I wish to address in slightly more detail, how Canadian political culture has changed and, in that context, why, the somewhat uneven judicial/legislative institutional relationship has to a significant degree, contributed to that change.
Second, I want to address the implications and consequences of this uneven institutional relationship as it relates to the broader Canadian polity.
So let’s start with what I allege is the change in Canadian political culture, a change that I also say is both caused by and reflects the current uneven institutional relationship that exists between the judicial and legislative branch.
If one is going to describe a change, one must be able to point to what existed before the change.
So let me take a moment to describe what I suggest was the traditional Canadian political culture in the years prior to the era that has followed the 1982 entrenchment of the Charter. I do so with some humility as I must acknowledge that the nature of Canada’s political culture has always been the subject of much debate.
The degree to which liberal, collectivist and communitarian values have been seen to dominate or share Canada’s political culture has depended upon the manner in which Canadian intellectual and ideological history has been interpreted.
That debate, however, in no way questions or casts doubt on the comparatively strong role of the legislative branch in Canadian history.
Indeed, throughout its history, Canadian citizens have respected and deferred to the role of their federal and provincial governments to act in purposeful ways, irrespective of whether those governments were situated in or on the centre, left or right of the political spectrum.
That sort of “purposeful” governance was expected to include and achieve on the one hand, the realization of big and bold federal and provincial objectives. On the other hand, it was also expected to assist in the accommodation and brokering of the diverse and conflicting interests underlying the various societal ills and problems that regularly presented in a physically vast and politically complex federation.
This Canadian version of purposeful governance was inextricably linked to a concern for the larger community, a concern that cohered not to the perceived American commitment to “life, liberty and the pursuit of happiness”, but rather to what became the Canadian constitutional cliché of “peace, order and good government”.
Despite this obvious concern for the concept of a broader national or provincial community, and the purposeful role of the accompanying governments who nurtured it, it is my contention and the contention of many Canadian historians, that prior to the era of the Charter, traditional Canadian political culture can be explained as having been shaped largely by attitudes which were consistent with and sympathetic to the core of the liberal ideal – attitudes which convey respect for the individual and for liberty.
Importantly, however, and it is important, there was at the same time in this Canadian political culture, another very significant, idiosyncratic and enduring quality. That idiosyncratic and enduring quality related to the general degree to which Canadian political culture remained ideologically open. This ideological openness, permitted a distinctly Canadian liberal and non-liberal value mix.
Let me try to be more concrete.
Some Canadian social historians believe, for example, that the loyalist settlement was a formative event that was part of a counter-revolution to the American revolution. This counter-revolution created in Canada, what some have called the “tory touch”. This “tory touch” implies that despite a dominant attachment to the ideal of individual liberty, Canada did, during its evolution, adopt from European conservatism, a sensibility that tolerated a degree of state intervention in certain spheres of societal life. That “tory touch”, along with subsequent phases of immigration that brought significant social democratic influences from the European left, created in Canada an ideological diversity similar to European societies, but one with a decidedly more liberal cast.
This instinctively esteemed liberal element, tempered as it was with noteworthy strains of European toryism and the rudiments of a social democratic emphasis on the collective, enabled Canadians to value their freedoms as jealously as the Americans, and at the same time, to point to important distinctions.
These distinctions were based on and fostered by, amongst other things, the nature of Canadian legislation and the prevailing public discourse. Canadian legislation and its prevailing public discourse, frequently reflected the collectivist and communitarian aspects of Canada’s incoming European ideologies. That legislation and public discourse, revealed as well, an attitudinal tone which in part, shaped what Canadians thought about their political system and its institutions.
So it’s in the context of this traditional political culture – where the legislative branch was both highly respected and comparatively strong and bold – that Canada’s less dominant but always present tory, social democratic and collectivist-communitarian strains were so well served.
At the risk of seeming to romanticize a golden age that never completely existed, I am going to nonetheless suggest that these less dominant ideological strains were well served by the co‑existing processes of conciliation, compromise and consensus. These processes were an integral part of the usually moderate ideological party positioning which takes place in a liberal democracy where an elected Parliament remains purposeful, accountable and supreme.
So if what I have just discussed, constitutes more or less what had been, prior to 1982, Canada’s traditional political culture, how, in the years following 1982, did the fundamental change occur? More specifically, why do I say that the change is both caused by and is now reflected in the new relationship between the judiciary and the legislative branch?
Any attempt to understand the nature and cause of the post-1982 changes in Canadian political culture, begins with a recognition of what was the 1982 Constitutional compromise and the accompanying common understandings that made the adoption of the Charter possible. It is only by acknowledging some of those common understandings that one sees how the judicial branch de-emphasized those understandings. By failing to more fully shape its role in light of those common understandings, the judiciary has created an unanticipated new relationship as between itself and the legislative branch.
Time does not permit an adequate review of the background and context of the 1982 repatriation initiative which led to the adoption of the Charter. It is enough to remember that the repatriation of the Constitution and the ultimate entrenchment of the Charter had been for some time prior to 1982, a goal of the Federal Government. The goal of entrenching a Charter of Rights was seen as a key ingredient in the Federal Government’s nation building strategy from 1967 to 1982. This strategy coincided with what were admittedly, certain emerging international trends in relation to the recognition of universal human rights, new norms of statehood, and more expansive notions of citizenship.
Despite these trends, it should never be forgotten that in the context of the Federal Government’s initiatives from 1968 to 1981, most provincial governments, to a greater or lesser degree, opposed the adoption of the sort of Charter that the Federal Government wanted as the centrepiece of any patriation package. Some of the provincial opposition was based on hesitation which arose from an intense loyalty to what was perceived as Canada’s British parliamentary tradition. The Charter was seen by these opponents as an instrument which was irreconcilable with the concept of legislative supremacy. These opponents were also mindful of some of what occurred during the development of American constitutional law and the extent to which an entrenched Bill of Rights had created an extremely potent judiciary. These premiers and provincial officials were very concerned by what they were witnessing in the United States in terms of the manner of judicial interpretation and innovation which they believed served to circumvent the power of elected representatives.
In addition to the institutional or parliamentary purists and those who feared the sort of innovation associated with the American Supreme Court, there were still other premiers who simply felt that duly elected legislatures were better positioned than appointed judges when it came to the matter of protecting individual and community rights.
So with that opposition in mind, the agreement ultimately reached by Pierre Elliott Trudeau and nine provinces in November of 1981, must be seen as the negotiated accord that it was. As with any such agreement, it contains the results of a “give and take”, a “give and take” that was required to win over opposition. When one examines the nature of the negotiations and the tradeoffs leading up to the agreement, it should be clear that the patriation package constitutes a tough political compromise. That compromise brokered certain common understandings which, amongst other things, were able to assuage the concerns and interests of those on both the right and the left who worried about both the loss of legislative supremacy and what they realized was going to be, inevitably, a new judicial/legislative relationship.
The tough political compromise that was attained, nonetheless succeeded in mirroring much of the liberal and non-liberal value mix that had historically made up traditional Canadian political culture. The very inclusion of s. 1 and s. 33 represented an effort to find an acceptable balance between individual rights and majoritarian democracy.
By its nature, the compromise of 1982 envisioned, through its included balancing mechanisms and terminology, what the framers thought would now be, by necessity, a more nuanced but still balanced relationship as between the judiciary and the legislative branch.The essence of the 1982 compromise and some of the accompanying common understanding can be summarized as follows:
Common Understanding No. 1
(1) Concessions were made to both the communitarian and liberal elements as they found expression in both the individual rights guarantees, and those provisions guaranteeing group rights.
Common Understanding No. 2
(2) The compromise was based on a premise of positivism grounded on a consensus as to the necessarily limited number of specifically enumerated individual and group rights identified. That is to say, there was an understanding that the legal protections, while requiring some eventual interpretation and particularization, would be those that were enacted by the framers. There was no suggestion of hidden rights or principles that awaited discovery by human reason. The drafters wanted the courts to be mindful of what rights were specifically prescribed and which were excluded.
Common Understanding No. 3
(3) The specifically chosen phrase for s. 7, “fundamental justice”, was intended to be interpreted so as to limit the judiciary’s review only to the procedural adequacy of legislation. The drafters and the framers of the Charter were not prepared to relinquish to the courts the right to question the substantive adequacy of their legislation. In fact, no section caused the drafters more concern than what was to become s. 7. One of the drafters of the Charter was, at the time, Federal Assistant Deputy Minister of public law, Mr. Barry Strayer, Q.C. who later went on to become a much respected judge of the Federal Court of Appeal.
Mr. Strayer, as he then was, testified before a joint Parliamentary committee about what was understood and intended by the drafters in respect of the phrase “fundamental justice”. Fearing the worst excesses of the American experience with the phrase “due process of law”, the drafters specifically chose the phrase “fundamental justice” which was specifically meant to not go beyond procedural fairness. Put simply and perhaps bluntly, the drafters wanted to avoid any language that would mandate substantive review and that would have the effect of permitting s. 7 to be interpreted to mean just about anything that could attract five votes on the Supreme Court of Canada.
Common Understanding No. 4
(4) The inclusion of s. 1 expressly recognized that individual rights will sometimes yield to the broader collective good.
Common Understanding No. 5
(5) The inclusion of s. 33 – the notwithstanding clause – was meant to signal to the courts, a caution, a caution in respect of any misconception that the judiciary might have were they, the judiciary, inclined to give the absolutely most expansive scope to the enumerated Charter rights. It is reasonable to assume, that it was expected that the interpretation of those substantive Charter rights would be restrained by and discerned with reference to, the liberal, non-liberal value mix characteristic of Canada’s political culture.
In this regard, as Chief Justice Dickson would later and properly note in R. v. Big M Drug Mart Ltd.,  1 S.C.R. 295 at 344, while a substantive Charter right deserved a generous interpretation, it was nonetheless important to not “overshoot” the actual purpose of the right. It would be necessary for the judiciary to recall that the Charter was “not enacted in a vacuum”.
Those are some of the common understandings of the 1982 compromise.
Irrespective of whether one agrees or disagrees with the intellectual merits of the ideas or the motivations that underlie those common understandings, as facts, they can be substantiated a priori or by the historical record. They do constitute the background and context for the 1982 compromise, a compromise that made the adoption of the Charter possible. Accordingly, those common understandings should now inform, at the very least, any study of Canada’s constitutional history and the subsequent evolution of the judicial/legislative relationship.
I’ll acknowledge again that the framers of the Charter would have been realistic enough to realize that the Charter did contain many open-ended provisions. Those open-ended provisions, with undefined terminology, would eventually have to be particularized by the courts. Nonetheless, it was thought that the public debate of the day and the specifically limited number of purposely-included rights would provide sufficient guide posts for the judiciary, a judiciary that I would contend was expected in certain areas in the years ahead to be more restrained than turned out to be the case.
So if that was the nature of the 1982 compromise, a compromise that seemed to reflect in many respects the traditional liberal and non-liberal value mix along with the desired institutional balance between the judicial and legislative branches, what happened in the following 35 years?
Well, a few things actually. While time does not permit a catalogue review of the specific, relevant and related cases, certain judicial approaches and analytical choices must be mentioned.
Let’s start with the judiciary’s approach to the concept of justiciability, which expanded the breadth of issues and subjects that could now be dealt with by the courts. There was also the judiciary’s new approach under the Charter to “standing”, which significantly relaxed previously existing rules, thereby permitting the participation of non-governmental intervenors in Charter litigation.
Then, there was of course, the foundational interpretive approaches. In this regard, I note the elimination of the presumption of constitutionality, the metaphor of the living tree, and as Justice David Stratas identified last year in his keynote address, the court’s repeated use of the purposive approach to interpret and expand in different cases, substantive Charter rights that had already been the subject of a purposive analysis. Justice Stratas’ point is obvious but important and it is consistent with what I identified was Chief Justice Dickson’s approach in Big M. Drug Mart. Assuming a completely thorough and robust purposeful analysis has already been conducted in respect of a given Charter right, it is reasonable to conclude that the analysis need not frequently be repeated for that same right on the questionable basis that its meaning may have changed (or requires updating) within a decade or two of its last analysis. To repeat such an analysis is to suggest that the Charter was enacted in a vacuum and/or that a great deal remains “up for grabs”. Such a repeated use of the purposive approach for the same right, risks as well, the inconsistency that comes with the seeming discovery of new and significant enhanced meanings.
Perhaps most fatefully, as it relates to interpretive approaches and choices, I note the Supreme Court of Canada’s decision in Reference re: British Columbia Motor Vehicle Act. It was in that case that the court reasoned and determined that in relation to s. 7 of the Charter, the principles of fundamental justice need be interpreted substantively as well as procedurally. In making that determination, Justice Lamer specifically ignored the intention of those who so carefully crafted the language of s. 7 to not go beyond procedural protection. Justice Lamer did so by determining that the evidence of those “present at the creation” – those involved in the drafting – should be given minimal weight, since statements by “civil servants” were not sufficiently indicative of the intentions of the legislative bodies that adopted the Charter. It can be said that since Justice Lamer’s fateful decision in the Motor Vehicle Branch reference, s. 7 has become, particularly in recent years, the single most fertile source for the discovery of new rights and the de facto constitutionalization of political and social issues.
The resulting judicial incursion into subject areas and issues of profound political, moral and social complexity, has the potential effect of removing these issues from the civic and political realms where ongoing and evolving debate and discussion may have taken place.
As it relates to s. 1, it is worth noting, that its impact on judicial power has been mitigated because as with every section of the Charter, the operational meaning of s. 1 was subject to judicial definition. The judiciary’s formulation of the proportionality test under s. 1, somewhat incongruously places the judiciary in the discretionary position of, amongst other things, measuring rationality, assessing legislative means, and considering and balancing the relative costs and benefits of national or provincial legislative regulation. Despite the structured nature of the discretion, the proportionality test still places the judiciary into a process of ad hoc interest balancing and cost benefit analysis.
For many, it’s not obvious that courts are always institutionally equipped to conduct this traditionally legislative function. To the extent that the identified judicial approaches and accompanying reasoning may have been restrained by such things as the consistency and predictability that comes with precedent, or by such developments like the “dialogue theory”, those potential restraints had in their application, sometimes uneven and ineffective influence.
Precedent under the Charter for example, has become less reliable as a source of consistent and stabilizing constitutional doctrine. This was never better illustrated than in the recent Supreme Court of Canada judgments in Bedford and Carter. In those cases, the Supreme Court has all but invited trial judges to overturn Supreme Court of Canada’s decisions if and where an evidentiary record suggests that enough circumstances have changed.
In the case of the dialogue theory, rather than offering the legislative branch a truly equal voice by way of its legislative responses, the theory proved to be more useful as a means by which the scope of Canadian judicial review could be legitimated. In the end, the so-called dialogue theory, left little doubt about who alone could end the institutional conversation.
It should be acknowledged that during this period where the judiciary was opting to deploy the approaches and reasoning it did, the Canadian citizenry was becoming increasingly cynical and distrustful of their elected governments.In this context, governments quickly proved reluctant to use the notwithstanding clause, which had become the constitutional equivalent of the nuclear option.
So that’s some of what happened since 1982.
The interpretive approaches adopted and the analytical choices made by the judiciary throughout the 1980’s and 1990’s and indeed, those that continue to this day, have led without question, to a level of judicial potency that was not anticipated back in 1982.
As suggested, this new judicial potency evolved and now continues to exist, concurrent with the comparatively less respected and the less celebrated standing of the legislative branch. Canadians, more quickly than some expected, have accustomized themselves to the dispositions of societal problems by Charter litigation and judicial adjudication.
I suggested earlier that such a development was not without consequence for the Canadian polity. What are some of those consequences? I see five.
Consequence No. 1
(1) The traditional role that the legislative branch played in the crafting of legislation which reflected some combination of the main ideological strains of Canadian political history, is increasingly more difficult. The now new and ever-expanding judicially-inspired criteria for constitutionality is more and more difficult for the legislative branch to anticipate and meet. The sometimes technical and legalistic nature of such criteria does not always mesh or reconcile with the compromises or solutions that need regularly be made in the legislative forum where efforts are typically made to accommodate differing ideological positions. These compromises and solutions had historically helped shape a particular and distinctive Canadian identity.
Consequence No. 2
(2) In a political culture where its citizens and institutional actors have become undeniably comfortable with Charter litigation and judicial adjudication of political and social issues, there is now, less room for long-term legislative results and solutions premised upon the tools of negotiation, persuasion, bargaining and compromise. That development is significant in a country like Canada where such legislative results could be seen historically as having been faithful to certain particular national and cultural realities. Those decidedly non‑legalistic compromises had worked to preserve shades of grey that defined a diverse Canadian society, a complex federation and a unique political culture.
Consequence No. 3
(3) With the expansion of judicial policy-making and the ability by individuals and groups to now make more stark sorts of claims on the state, there has indeed been a flight from politics. It is a flight from what is now, a less potent and less influential legislative branch that seldom has the final word. This flight from politics toward the zero-sum game of Charter litigation is shaped by a public discourse dominated by the concept of “rights”. This flight from politics and the accompanying rights-inspired public discourse, often leaves the broader citizenry on the sidelines in a potentially disempowered state not always able to understand, discuss or debate, the highly technical and legalistic formulations and tests which now often form the basis of a final determination concerning a significant societal issue.
Consequence No. 4
(4) For both the broader citizenry and members of the legislative branch, there is, in the new Canadian political culture, a tendency to ground one’s interests and rationalize one’s behaviour, on the basis of what is constitutional. In such a political culture, constitutionality may be conflated with wisdom. In the case of lawmakers, as former law dean and professor Douglas A. Schmeiser has noted, they, the law makers, may themselves become distracted from pursuing what should be their proper goal. According to Schmeiser, a legislator should be concerned primarily with the rightness of his or her legislation, not with its constitutionality.
In connection to the sometimes reflexively invoked concept of constitutionality, governments may now be alternately more timid or opportunistic. The timidity and opportunism can manifest in the manner in which governments may take, delay or avoid policy positions in the name of ensuring “constitutionality”.
Consequence No. 5
(5) With the “constitutionalizing” of more and more political and social issues into fundamental rights, the Canadian judiciary has all but removed those issues, in a fairly permanent way, from the realm of future civic engagement and future political debate. Given the often invoked rationale underlying the use of the living tree metaphor, it is ironic indeed that in constitutionalizing these political and social issues, the courts have “frozen” those issues in time, and thereby immunized those issues from future and evolving civic engagement, discussion and debate.
In my view, ladies and gentlemen, those five consequences to the Canadian polity are not insignificant. They all flow from what I suggest is a now uneasy and somewhat more imbalanced institutional relationship under the Charter.
So I repeat the question with which I started my remarks: In the context of Canada’s celebration of the Charter, should the state of the resulting judicial/legislative relationship be so reflexively applauded and promoted? For those who find the intellectual space in Canada to ask that question, it may lead you to inquire as to how an institutional balance might be restored?
To that question I can say only the following. Any future restoration of a peculiarly Canadian institutional balance in the judicial/legislative relationship, if it is to take place, will have to occur in what is now a new and different Canadian political culture.
Yet even if Canadians are now and will remain comfortable with the addressing of political and social problems through Charter adjudication, I remain hopeful that my institution – the judiciary – will increasingly perform its task with the type of principled restraint, consistency and predictability that can and should come from identifiable constitutional and legal doctrine.
Part of my hopeful scenario would include continuing efforts at renewal of parliamentary and political institutions.
The resulting enhanced public confidence, would leave considerable room for a resuscitated and bold legislative branch to once again assertively shape attitudes and policies. This more assertive posture, could include a Parliament that would itself begin to play an increasing coordinate role in articulating and promoting its own interpretation of the meaning, for example, of the Charter right to life, liberty and security of the person. I would hope and have every reason to believe, that this would signal the beginning of a true dialogue with the courts, where the resulting policies would, I suspect, reflect a traditionally pragmatic and uniquely Canadian mix of liberal and non-liberal values.
Those values had always infused into any conception of individual liberty, an accompanying emphasis on the concept of a broader collective good.
When I was at Oxford many years ago, they used to say that the definition of a good debate, is one where no one opportunistically mentions Adolph Hitler. In that same spirit, I suppose one could say that a definition of a good Canadian speech is one where no one opportunistically invokes Canada’s differences with the United States in a subtle claim to Canadian superiority.
Alas, at the risk of being accused of doing just that, let me conclude by making one final point. Canadian attitudes and policies are currently in this, the era of the Charter, increasingly shaped by judicial formulations and tests, many of which find inspiration in a more absolutist notion of liberty. That less nuanced notion of liberty is more consistent with the ideological strains and doctrines that find their origins in the political culture of the United States. This more American liberal / rationalist approach to rights protection, gives expression to what used to be a very un-Canadian distrust of government. It is an approach to rights protection that arguably removes more and more areas from legitimate spheres of government action and influence. With this removal of issues from the appropriate spheres of government action and influence, there is a potentially impoverishing effect on traditional Canadian notions of the public and national good. This is especially so at a time when our laws are now increasingly shaped by a more narrow, legalistic and rights-inspired concept of constitutionality.
The theme of much of Canadian history has been the assertion and survival of a distinct Canadian identity in North America. It may be one of the bitter ironies of Pierre Elliott Trudeau’s Nation Building strategy of the 1980’s, that despite the celebration and promotion of the Charter, it has led to an institutional imbalance that dilutes a source of Canadian distinctiveness.
While no one would seriously suggest that Canadians value, desire or ought to receive protection of their fundamental freedoms in a manner more abridged or diminished than that of their American neighbours, it is nonetheless important to remember Chief Justice Dickson’s observation in Big M Drug Mart that the Charter was not to be interpreted in a vacuum. In that spirit, we are also well to recall Canada’s traditional liberal and non-liberal value mix which had reflected the longstanding Canadian esteem for liberty and the accompanying concern for the complex realities that underlie the broader Canadian notion of “community”. As I’ve tried to contend, this communitarian strain was in no small way cultivated and nurtured by the purposeful role of Canadian governments, their legislation and the resulting and prevailing public discourse.
Without a restoration of a more equal judicial/legislative relationship, it remains uncertain as to whether there will be the type of nuanced and balanced institutional dynamic envisioned by the framers in the 1982 compromise. Yet, without such a balance, it is far from certain that the Canadian legislative branch will be in a position to do, that which it has always done: maintain and nurture those distinguishing ideological traits that shape policies and solutions that have been so uniquely Canadian.
Can the judicial/legislative institutional relationship be restored to a state of nuanced balance as envisioned by the framers of 1982? If it can, a necessary starting point for the realization of that objective will be the sort of inquiry, that some might say I have presumptuously imposed upon you tonight.
I thank you for your attention and your kind invitation.
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