Canada’s Judicial Captivity

From the confederation of provinces which formed Canada in 1867 until 1982, Canada was a country of parliamentary supremacy. That is not to say that Canada was governed well; sometimes she was governed well, sometimes ill, but always she was governed by the elected representatives of the people. Issues of public policy were determined by legislators who, at least quadrennially, were required to account for their policies to an electorate that had voted them into office.

The Charter of Rights and Freedoms, a by-product of then Prime Minister Pierre Elliott Trudeau’s 1982 constitutional patriation package, changed that. Essentially, Canada ceased to be a country of parliamentary supremacy and became, like the United States, a country of constitutional supremacy, where the Charter of Rights and Freedoms is “the supreme law of the land.” It is noteworthy that since 1982 the Canadian Supreme Court has, by and large, followed the same ideological imperatives as the American courts and in response to the same agenda. The forces propelling this agenda are both transnational and relativistic. The Canadian voter still goes to the polls quadrennially, but it is judges who have imposed abortion on demand ( R. v. Morgentaler), who came within a single vote in the Supreme Court of creating a Charter right to physician-assisted suicide ( R. v. Rodriguez ), and who are systematically eradicating any normative distinction between homosexuality and heterosexuality ( M. v. H. ).

In Canada we have one advantage over the United States in that our Charter of Rights includes section 43, the so-called “notwithstanding” clause. This clause allows the parliament of Canada, or any provincial legislature, to override certain specified sections of the Charter, if that government is prepared to take the political heat involved in doing so. To date the only government that has demonstrated the political will to invoke section 43 has been the government of Quebec.

The problem with constitutional supremacy is that constitutions are not self-interpreting; one Ontario judge recently wrote: “Elected representatives of the people create constitutions, leaving it to nonelected judges (in Canada at least) to decide what exactly they have created.” The power to interpret means that judicial hubris is inevitable, judicial tyranny an unfortunate possibility.

Decision-making by courts is the antithesis of democracy. The court is unelected, nine appointed men and women, all drawn from the same profession, milieu, and background, accountable to no one, and holding security of tenure until age seventy-five. To some extent, Canadian courts have sought to deflect this criticism by saying that judges did not seek their new Charter role; it was thrust upon them.

There is a measure of truth in this. The more significant point, however, is that even under the Charter the courts could have developed a doctrine of judicial self-restraint, as the U.S. Supreme Court has done on certain occasions. Instead the Supreme Court of Canada seized the opportunity to substitute its will for that of parliament on some of the most divisive social issues of the day––abortion, for example, in the Morgentaler case. As a result, Canada has the invidious distinction of being the only country in the Western world with no legal restrictions whatsoever on abortion.

Many Supreme Court judgments, in recent years, have ceased to have much legal content and have become instead a random collection of the judges’ personal and ideological predilections. The feminist wing of the Supreme Court, led by Madame Justice Bertha Wilson, developed an explicit ideology; judges who did not defer to it were told to butt out. In her judgment in R. v. Morgentaler, Madame Justice Wilson wondered if men were capable of understanding abortion, or even qualified to express any opinion on the issue. In R. v. Lavallee she changed the law on self-defense to allow women to kill their battering spouses because otherwise jurors might accept what she called “the myth” that if a battered woman is dissatisfied, she might consider leaving home. And on the topic of myth, Madame Justice L’Heureux-Dube in R. v. Seaboyer and Gayme recently denounced what she called “the stereotypical myth” that men who rape women are not normal men. The corollary, which we are asked to accept as judicial truth, is that all men are potential or actual rapists.

The interesting question is why judicial interpretation of the Charter of Rights has proved so perverse? Is it, as Job prophesied, an instrument “to make the counselors behave like idiots, and drive the judges mad”? Let me suggest three answers to this question.

First, a Charter of Rights wrongly conceives the crux of the problem. Since John Stuart Mill’s essay On Liberty we have come to conceive of liberty in individualistic terms, a view the Canadian Charter expressly embodies. The individual needs protection against the tyranny of the majority, and so we enact a Charter of Rights to achieve that protection. But the claim to individual liberty very often masks harm to the collectivity; we are not just atomized individuals, we are also members of a community, citizens of an organized society. The individual’s claim to liberty, albeit expressed in the high-minded rhetoric of rights, often conceals selfish, sometimes perverse, interests. The sanctification of Larry Flynt as a martyr to free speech is a recent case in point. The lone, brave individual standing his ground against the menacing omnipotent state was John Stuart Mill’s archetype and this is powerful mythology; the sadistic criminal going free and making citizens ever more fearful, even in their own homes, is the more common reality.

Second, the Charter of Rights is pernicious in that it forestalls true political debate. The appropriate level of restraint on individual liberties is, or should be, a fundamental political question. But in Canada such debate does not occur: it is reduced to one person claiming “I have a right” to which the only response is either acquiescence or denial. Ultimately, all such issues are now resolved by courts. Such a puerile approach to deep philosophical questions does immeasurable harm to the possibility of mature political discourse. It also inflates judicial hubris.

Finally, a Charter of Rights fundamentally misconceives the problem of liberty. Our liberties are not threatened by devils in Ottawa, nor very often by “pigs” in police uniforms, nor often by tyrannical majorities; the problem is within ourselves, whether each of us can discern and live by an appropriate balance between freedom and restraint, between indulgence and self-discipline.

The lesson that Alexandr Solzhenitsyn learned in the freezing darkness of the Gulag Archipelago was that the line between good and evil ran not between nations, nor between states, not even between ideologies, but right down the center of each and every human heart. So, too, does the line between liberty and license, between rights and responsibilities. The Canadian Charter is just the most recent utopian attempt, in a long, futile, and mostly sordid history of attempts, to legislate that which cannot be legislated. Hugh Kingsmill expressed the point admirably in the Introduction to his neglected masterpiece, The Poisoned Crown :

Ian A. Hunter is Professor Emeritus of Law at the University of Western Ontario.