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Article Excerpt
"Our primary objection to the Charter Revolution is that it is deeply and fundamentally undemocratic.... The growth of courtroom rights talk undermines perhaps the fundamental prerequisite of decent liberal democratic politics: the willingness to engage those with whom one disagrees in the ongoing attempt to combine diverse interests into temporarily viable governing majorities" (Morton & Knopff 149).
"An emphasis on individual conscience and individual judgment ... lies at the heart of our democratic political tradition. It is because of the centrality of the rights associated with freedom of individual conscience ... that American jurisprudence has emphasized the primacy or 'firstness' of the First Amendment. It is this same centrality that in my view underlies their designation in the Canadian Charter of Rights and Freedoms as 'fundamental.'" (Dickson, opinion in R. v. Big M Drug Mart Ltd., in Dickson 346) (2)
There is, of course, no one "American view" of the Canadian Charter, or of anything else Canadian. Yet there are some sentiments--and some degrees of ignorance--that are widely shared south of the border. For example, most Americans are surprised to learn that Canada had no real (constitutionally entrenched) bill of rights until 1982. The idea that Canadian legislatures could suspend freedom of speech or trial by jury, for example, strikes Americans when they first encounter these facts as strange, and indeed as "downright un-American"! Or, better said, as "not acceptable in a modern democracy." After all, the United States has had a Bill of Rights for more than two centuries, and the U.S. Supreme Court's interpretation of those rights has been an important part of the evolution of civil liberties and civil rights--of general public policy as well as law--especially in the past one hundred years.
In addition, Americans who know something about Canadian history and culture are surprised to learn that, when Canada added a "bill of rights," its officials did not proceed with the kind of measured caution often associated in the US with the Canadian psyche. Instead of caution, the relevant phrase is vigorous action, as the justices of the Supreme Court of Canada quickly cast off their long tradition of deference to elected legislatures. Between 1984 (when the first cases under the Charter reached the Court) and 1990, the justices sitting in Ottawa embarked on a sustained campaign to expand the rights of women, of Aboriginal groups, and of other Canadians. And their efforts in those six years set a pattern of judicial activism that has continued into the present century.
For many Americans, the realization that Canada has moved from the back bench to the front row in employing judicial action to protect individual rights and advance equality has come only with the publicity given to quite recent cases--perhaps notably the 1998 case of Vriend v. Alberta (adding "sexual orientation" as a protected class under Alberta's human rights statute), and two cases in 2003, in which the courts in Ontario and British Columbia determined that the "equality" provisions of the 1982 Charter require that marriage be available to two individuals of the same sex under the same conditions as opposite-sex marriage.
For those Americans who embrace individual rights and equality as prime values for a society, these developments north of the border are wondrous indeed--providing standards to which their own country should aspire. For others, who prefer to rely on legislative deliberation as the route to social reform, or who believe that law should embody conservative morality--or both (Imping that the first will ensure the second)--the rapid evolution of Canadian law since 1982 is strange and dismaying. To these Americans, who applaud the direction in which their own chief justice, William Rehnquist, has attempted to lead the U. S. Supreme Court, the recent evolution of Canadian jurisprudence displays a disturbing and unhappy pattern. A pattern more disturbing to these American conservatives just now, for Anthony Kennedy and his fellow American justices seem to be drinking from the Canadian broth concocted by Brian Dickson and his colleagues in the 1980s, then enriched by their successors in the past thirteen years. Thus a sensitivity to those who have endured discrimination, a concern embodied in much of Dickson's work as chief justice, is discovered anew at the U. S. Supreme Court--perhaps most notably in the field of gay rights, where Justice Kennedy's majority opinion in Lawrence v. Texas in 2003 sets a new standard, declaring unconstitutional all the state and local anti-sodomy laws in the nation.
Perhaps the influence of Brian Dickson and the Canadian courts on American judicial action is not so great as this, at least not yet. But how Dickson shaped the new Charter is a matter of interest to Americans concerned with reform in the south, as well as to Canadians--including Canadians who wish to reinforce and expand Dickson's legacy, and those who are seeking ways to undermine that legacy and return us to a simpler time, an era of Parliamentary sovereignty, a passive judiciary, and a conservative morality across the land of the True North. This paper explores in some detail the strategies that Dickson employed, comments on the impact of Dickson's opinions in the United States, and, at the end, offers some observations on the advantages and limitations of Dicksonian activitism, in terms of its impact on the vitality of Canadian democracy.
As noted above, until 1982 Canada had no counterpart to the First Amendment or other provisions in the American Bill of Rights--that is, it had no statement of individual rights enshrined in its written constitution, and it had no judiciary that could declare legislative actions null and void, as violations of those constitutional rights. Canadians relied on their elected officials to protect their liberties; following the doctrine of legislative sovereignty, the federal Parliament and provincial legislatures could, except in the area of "federalism," overturn any court decision.
All that changed in 1982. With the creation of the Charter of Rights and Freedoms in April of that year, the Canadian constitution was provided with an extensive list of individual rights and, adding a complexity not found in the American system, an array of "group rights" as well. The Supreme Court sitting in Ottawa now had the role that its American counterpart had successfully asserted in the first years of the 19th Century under Chief Justice John Marshall--the power to declare null and void any governmental action that the Court found to be inconsistent with the new Charter. Within a few years, the Canadian court would exercise this power, and those who favored relying on legislative majorities would be unhappy. The first quotation above captures this unhappiness and some of the reasons why opponents of the Charter preferred a judiciary with weaker power.
There were many who had viewed legislative supremacy as a very mixed blessing. Included were those who fought for the rights of Aboriginal groups and the rights of women, and others who found laws passed in Ottawa, and in Manitoba and Alberta (and other provinces), oppressive or insensitive. To these individuals and organized clusters of Canadian citizens, a charter--combined with judicial review on the American model--offered a way to remedy the weaknesses of legislative dominance (which meant, as some observed, dominance by white male decision-makers). A charter could be a route to making these disadvantaged Canadians full citizens--reducing their sense of alienation, protecting their members and their associations from disadvantages that majoritarian laws imposed, and perhaps providing them with resources needed to nurture their cultures. In response to these concerns, the Liberal Party led by Prime Minister Pierre Trudeau developed a draft Charter in 1980 and sought public comment. Women's groups and civil-liberties leaders criticized what they viewed as weaknesses in the draft, and they then fought successfully to strengthen individual and group protections. The 1982 Charter showed the impact of their efforts in a variety of areas. (3)
Between 1984 (when the Supreme Court of Canada handed down its first "Charter case" decision) and 1990, the leader in shaping Court policy was its chief justice, Brian Dickson. Dickson wrote many of the Supreme Court's most important opinions, which often framed the issues before the Court in large ways and rendered decisions with extensive sweep. Yet he was sensitive to the concerns raised by Morton & Knopff and by others, and he sought to direct attention to the nexus between judicial action favoring individual rights and the preservation of a vigorous democracy; his own position is in part captured in the second quotation at the top of this paper. On other occasions he deferred--or may have deferred--to legislatures as the institutions better able than the courts to determine national policy.
This paper first describes the traditional role of the Supreme Court of Canada and developments leading to approval of the Charter in 1982 and appointment of Brian Dickson as chief justice. I then discuss the strategies that Dickson and his colleagues used in eroding "legislative supremacy" and turning the Court into an active force in grappling with complex social issues. Enroute I refer to the criticisms of Morton & Knopff and others, who view the kind of judicial activism embraced by Dickson--and by the Court majority since the Charter was enacted--as undermining a once-vibrant Canadian democracy. And I discuss one area--hate propaganda--in which Dickson's Court majority defends the rights of vulnerable minorities by embracing legislative action, using a rationale that has influenced American legal thinking. In the final paragraphs of the essay, I offer an assessment of the charge that Dickson was too inclined to judicial "activism," an approach that may have weakened Canadian democracy.
Legislative Supremacy and the Case of Stella Bliss
Canada inherited its governmental design from Great Britain, which has long lived under a system of parliamentary sovereignty. In Britain, no court decisions could block Parliament's power to set final policy in any area; freedom of speech and religion, the right to trial by jury, and other "individual rights"--and limitations on those rights--were decided finally at Westminster. Under the British North America Act of 1867, this system of parliamentary supremacy was conveyed to Canada, except for modifications needed to fit Canada's federal structure. That is, some powers were allotted only to the Canadian provinces (for example, education), others exclusively to the federal government (for example, banking), while still others were shared (as, criminal justice). The Canadian courts could and did at times declare a provincial or federal law unconstitutional--but only because the statute violated the division of responsibilities set forth in the BNA Act (later retitled the Constitution Act, 1867). Except for cases that raised "federalism" questions, however, Canadian courts could be overruled by--and tended to defer to--the federal parliament and the legislatures of the ten provinces. (4)
The problems generated by this tradition are nicely illustrated by the Supreme Court's handiwork in the case of Bliss v. the Attorney General of Canada (1979). In 1971, the federal parliament had approved the Unemployment Insurance Act, which provided monetary benefits to women during the final months of pregnancy and during a period of weeks after childbirth. These "maternity benefits" were available only to women who had been employed for at least ten weeks just before leaving a job; pregnant women who left a position with less than ten weeks of service were also barred from receiving the unemployment benefits available (without the ten-week constraint) to all men and to women who were not pregnant.
Stella Bliss took maternity leave but did not meet the ten-week standard; her application for benefits was therefore denied. In 1960, however, Parliament had enacted a Bill of Rights that declared "the right of the individual to equality before the law" and barred discrimination "by reason of race, national origin, colour, religion or sex"; Bliss applied to the courts to use this statute to overturn the denial of benefits. (5) In the lower court, Judge Collier agreed with her contention: "I am drivell to the inescapable conclusion that the impugned section ... authorizes discrimination by reason of sex, and as a consequence, abridges the right of equality" trader the 1960 law. (Bliss, 1979, 190). After appeal, the case reached the Supreme Court of Canada.
Traditionally reluctant to declare a federal law invalid (and knowing that the Parliament could respond with a new statute overturning the Court's ruling, and perhaps thereby diminishing its prestige), the justices sought a way out of the dilemma framed by Judge Collier. But their reasoning managed to do exactly what they hoped to avoid--undermine the Court's reputation.
Writing for a unanimous bench, Justice Roland Ritchie argued that the sections of the 1971 insurance act challenged by Stella Bliss were part of "a legislative scheme enacted for valid federal objectives ... from which men are excluded." Thus "any inequality between the sexes in this area," Ritchie wrote, "is not created by legislation but by nature." Having decided that the legislation provided distinct (and in this case lesser) benefits because women are different from men, he reached for a way to avoid Collier's conclusion--that this must he labeled as sex discrimination. A comment by one lower-court judge in the Bliss case offered intriguing reasoning, and Ritchie quoted it: If the act "treats unemployed pregnant women differently from other unemployed persons, be they male or female, it is, it seems to me, because they are pregnant and not because they are female."
"I am in accord" with this thinking, Ritchie concluded, and his analysis and conclusion, rejecting Stella Bliss's appeal for benefits, were endorsed by a unanimous Court (Bliss, 1979, 190-91).
But not by all observers. The Court's decision was pilloried...
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