Law, Politics, and the Judicial Process in Canada, 4th Edition

F.L. Morton, Dave Snow

• Publisher: University of Calgary Press
• Year: 2018
• ISBN:
  9781552389928
• Edition: 4
• Topic: Diritto
• Subtopic: Tribunali

Since the first edition of this popular text was published in 1984, the Charter of Rights and Freedoms has transformed the role of the courts in Canadian politics. Newly revised and updated, Law, Politics, and the Judicial Process in Canada, 4th Edition provides an introduction to the issues raised by the changing political role of Canadian judges. It includes over 40 new readings, including two all-new chapters on the Harper Conservatives and Aboriginal Law. Addressing current controversies, including the Canadian Judicial Council's investigations into Justice Robin Camp and Lori Douglas and the Trudeau Government's re-introduction of the Court Challenges Program, this book strives for competing perspectives, with many readings juxtaposed to foster debate. Taking a critical approach to the Charter of Rights and Freedoms and the growth of judicial power, editors F.L. Morton and Dave Snow provide an even-handed examination of current and ongoing issues. Law, Politics, and the Judicial Process in Canada, 4th Edition is the leading source for students interested in the Charter of Rights and Freedoms and the growth of judicial power in Canada.

1

The Rule of Law in the Canadian Constitution

On December 4, 1946, Frank Roncarelli was informed by the Quebec Liquor Commission that the liquor licence for his Montreal restaurant had been revoked “forever.” Mr. Roncarelli had not violated any Liquor Commission guidelines, nor had he been charged with or convicted of any criminal wrongdoing. The licence was revoked because, as Mr. Roncarelli and indeed everyone else knew, Maurice Duplessis, the Premier of Quebec, wanted to punish him for his membership in and financial support of the Jehovah’s Witnesses. The Jehovah’s Witnesses are an evangelizing, fundamentalist protestant sect that had outraged Duplessis and the French-Catholic majority in Quebec through their outspoken criticisms of the Catholic Church and its priests. The Duplessis government had begun a campaign of legal harassment against the Witnesses by arresting them for distributing their printed materials without a licence. Roncarelli frustrated this plan by regularly providing bail money for his arrested fellow-believers, who would then return to the streets. Roncarelli thus became a special target of the Quebec government’s harassment.

After a thirteen-year legal battle, the Supreme Court of Canada finally ruled that the government of Quebec’s treatment of Roncarelli had been arbitrary and illegal. Moreover, Duplessis could not hide behind the civil immunity normally enjoyed by state administrators under Quebec law. By grossly abusing his administrative discretion, Duplessis was deemed to have acted outside the law and was thus subject to being sued by Roncarelli for damages1 (Reading 1.1). A majority of the Court held that in Canada there is a general right not to be punished by the arbitrary exercise of government power. A government, federal or provincial, can only move against an individual in accordance with known rules, and the Duplessis government had failed to meet this standard. In so ruling, the Supreme Court reasserted one of the fundamental principles of the “unwritten constitution” of Canada – “the rule of law.”

The Roncarelli case was just the most recent chapter in a living tradition that can be traced back through the nineteenth-century writings of A.V. Dicey (Reading 1.4); the American Declaration of Independence of 1776 (Reading 1.3); the political theory of the seventeenth-century philosopher John Locke (Reading 1.2); and even to the fields of Runnymede in June, 1215, when the English nobles forced King John to sign Magna Carta and to agree to rule per legem terrae – that is, according to the laws of the land.2

Magna Carta marked the beginning of the “rule of law” tradition. The Glorious Revolution of 1688 deposed the Stuart kings and established Parliament’s supremacy over the Crown. This landmark event initiated the practice of government that we now take for granted (too much so!) – representative government, or government by consent of the governed.

The second reading is from the writings of John Locke, often referred to as the “theorist of the Glorious Revolution.” Locke’s Second Treatise on Government, first published in 1690, has been the most influential defence and advocacy of “government by consent,” or liberal democracy, ever written. In it, we find not only a defence of “government by consent of the governed,” but also a restatement of the principle of per legem terrae. Locke explicitly declares that even the new sovereign, the legislature, must rule “by declared and received laws ... interpreted by known authorized judges.”

A careful reading of the passage from Locke reveals that, in addition to these procedural restrictions, he imposes a second major restriction on the legislative, or “law-making,” power of the state – “the law of Nature.” This substantive restriction means that, not only must laws be duly enacted and fairly administered, but laws themselves must not violate the “natural rights” of individuals that exist by the “law of Nature.” This law of nature is understood to transcend human society and to exist independently of the positive law of any given state.

This double limitation on just government was given its most striking and memorable articulation in the American Declaration of Independence of 1776, written primarily by Thomas Jefferson (Reading 1.3). The Americans justified their revolution, and subsequently founded their new republic, on the two fundamental principles of Locke’s political theory: that “all men are by Nature equal,” and that they possess certain inalienable (i.e., natural) rights. There is a critical tension between these two fundamental concepts of equality and liberty. The principle of natural equality essentially means that no person (or group of persons) is inherently so superior as to rule others without their consent. This banishes the traditional claims of priests, kings and nobles to rule on the basis of their alleged natural superiority, and replaces it with government by consent of the governed. In practice, this has meant some form of “majority rule” democracy. The principle of natural rights means that a just government cannot violate these rights, since the very purpose of government is to secure such rights. The tension arises from the fact that “majority rule” does not always produce laws that respect the rights of individuals or groups that are not part of the majority.

This tension is more of a theoretical problem than a practical one. Most of the time, the combined practice of “government by consent” and “the rule of law” is a strong guarantee that the twin requirements of equality and liberty will be met. It is unlikely that a governing majority will ever (knowingly) consent to policies that are destructive of their rights. The “rule of law” provides additional safeguards by deterring rulers from pursuing ends and using means that “they would not like to have known by the people, and own not willingly.”3 But what happens when the majority consents to laws that are destructive of the natural rights of a minority? What happens when government by the “consent of the governed” no longer “secures these rights”? Neither Locke nor Jefferson answered this question. The practical problem of reconciling “majority rule” with “minority rights” was left to the founders of new liberal democracies such as the United States and Canada.

Historically, modern liberal democracies have given institutional expression to the principles of equality and liberty in one of two ways: the British parliamentary or Westminster model and the American “separation of powers” model. Because of two major differences in the British and American systems, the courts in each have very different functions and characteristics. The American model is ultimately based on and organized by a single basic document – a written constitution. This single document sets down in writing “the rules governing the composition, powers and methods of operation of the main institutions of government, and the general principles applicable to their relations to the citizens.”4 By contrast, the Westminster model is based on an “unwritten constitution” – a combination of historically important statutes, the common law and numerous unwritten conventions and usages. (In 1998, Britain took a step in the direction of the American model by adopting the Human Rights Act. See below.) The second difference is that the American-style “written constitution” includes an enumeration of the fundamental rights and liberties of the individual against government, known collectively as the Bill of Rights. While individuals enjoy basically the same rights and freedoms under the traditional British parliamentary model of democracy, they are not “spelled out” in any single, basic document of government (i.e., they are not “constitutionally entrenched”).

The result of these two differences is that under the American model of democracy, the courts, and especially the Supreme Court, play a more explicit and influential political role. Ever since the 1803 case of Marbury v. Madison, American courts have assumed the function of interpreting and enforcing “constitutional law” just as they do all other law. This “judicial review” of legislative and executive actions is intended to ensure that the latter conform to the procedures and limitations laid down in the Constitution. If government laws and actions do not conform, the Court declares them to be “unconstitutional,” invalid and therefore without legal effect.

It is easy to see how, in theory at least, combining the American practice of judicial review with an entrenched bill of rights resolves the tension between liberty and equality, majority rule and minority rights. If the majority enacts a law that infringes a person’s constitutional right, the individual can go to court and ask the judges to strike down the law as unconstitutional. This approach to protecting civil liberties was particularly effective in promoting racial justice in the United States during the 1950s and 1960s. While the more “democratic” (majoritarian) institutions of government refused to take action, the United States Supreme Court used the Bill of Rights’ guarantee of “equal protection of the laws” to strike down the legal barriers of racial discrimination in American society. However, as the Supreme Court expanded its “judicial activism” into more and more areas of public policy and local government, serious questions began to arise about the “undemocratic” character of its use of judicial review. In protecting the “individual rights” side of the liberal equation, the Court was perceived as neglecting and even violating the equality requirement of government by consent of the governed.5

The British model of parliamentary supremacy combined with the “rule of law” tradition avoids this problem. There are no written constitutional prohibitions for the British courts to enforce against Parliament, and the courts do not interpret or enforce constitutional conventions, the “unwritten constitution.”6 The critics of parliamentary democracy, however, contend that it is prone to the opposite problem – that there is no adequate mechanism to protect individuals or minorities from democratic majorities that violate their rights. While this may be true in theory, in practice it has not proven to be a serious problem in either Great Britain or Canada. While Canada’s record when it comes to civil liberties is far from perfect,7 it remains much better than the vast majority of modern nation-states.

The key to the British parliamentary system’s practical success is conveyed in the reading from Dicey on “the rule of law,” and especially his quotation from Tocqueville (Reading 1.4). Comparing the governments of England and Switzerland, Tocqueville observed that, “In England there seems to be more liberty in the customs than in the laws of the people,” while the opposite holds for Switzerland. For both Tocqueville and Dicey, the British condition is far preferable. For, in the long run, a society’s customs, habits, beliefs – the moral quality of public opinion – is a more dependable guarantee of just laws than the “paper barriers” of constitutional “guarantees.” Put very simply, a written constitution cannot “guarantee” that the laws of a democratic society will be any more just or fair than the people who make up that society.

The government of Canada was basically modelled after the British parliamentary system. The one important exception is the federal form of the union of the Canadian provinces, and the defining of the forms and limits of this union in a single, written document – the British North America Act, 1867, now known as the Constitution Act, 1867. This aspect of Canadian government is especially important for the courts because it has thrust upon them the function of judicial review, or “umpire” of the federal system.8 Federalism aside, both levels of government in Canada were formed after the Westminster model, which entailed parliamentary supremacy within their respective spheres of jurisdiction.

Accordingly, until 1982 Canada followed the British approach to the protection of civil liberty – parliamentary supremacy combined with “the rule of law,” and a healthy self-confidence in Canadians’ basic sense of fairness and tolerance for diversity. Inevitably, the proximity of the United States has prompted constant comparisons. One of the most eloquent and forceful defences of the A...