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The Decline of Common Law Constitutionalism in Canada

Winter 2008 - Vol. 50, No. 1

BRADLEY C. S. WATSON is Philip M. McKennaProfessor of American and Western Political Thoughtat Saint Vincent College. He previously practicedlaw in Vancouver, Canada. His forthcoming book isLiving Constitution, Dying Faith (ISI Books).

Canada provides a case study in theprecipitous decline and fall of commonlaw constitutionalism in the face of modern,and especially postmodern, political thoughtand practice.1 In 1982, the Canadian Charterof Rights and Freedoms (or "the Charter,"as it is commonly called) was introduced.It provided the means whereby whatmight loosely be termed an "Americanstyle"rights-oriented jurisprudence couldplay a major role in Canadian courts.

For its first 115 years as a unified nation,Canada had followed English common lawdoctrines, including, critically, the notion ofparliamentary supremacy. Unlike England,Canada from the beginning had a federalsystem that raised questions of separation ofpowers between the national and provincialgovernments. As in the case of U.S. states,Canadian provinces retained sovereignty incertain areas. In Canada, to the extent courtsheld forth on constitutional matters, it wasmost often on questions limited to the relationshipbetween the national and provincialgovernments.

Under the new jurisprudence, Canadiancourts, unlike the English courts on whichwere are modeled, no longer confine themselvesto a relatively limited range of disputes,or to the careful application of existing legislation.Rather, they act as all-purpose socialengineers, often declaring unconstitutional,for all times and purposes, legislation dulypassed by Parliament or the provincial legislatures—and occasionally, in effect, re-writingthat legislation. Such a jurisprudence,prior to 1982, simply did not exist in Canada.

The Charter changed all this, but it did notdo it alone. The rights-based liberalism inherentin the Charter was aided by thepostmodern politics of Canada. This headycombination has had a devastating effect oncommon law constitutionalism. Reflectingon it discloses vital lessons for the UnitedStates and other common law countries.

The Charter purports to guarantee variousfundamental freedoms, democratic rights,mobility rights, legal rights, and equalityrights, among other things. But, in a bow tothe notion of consent expressed through parliamentaryinstitutions, section one of theCharter makes all of the rights and freedomstherein subject to "such reasonable limitsprescribed by law as can be demonstrablyjustified in a free and democratic society." Ina further bow to parliamentary supremacy,section thirty-three of the Charter—the socalled"notwithstanding clause"—providesthat federal or provincial acts may operate"notwithstanding" the fundamental freedomsor legal rights guaranteed by the Charter asinterpreted by the courts, if Parliament or aprovincial legislature expressly so declare.

In sum, the Charter can be seen as a liberalrights framework imposed on what the Canadianphilosopher George Parkin Grantsaw as a "Tory" nation, not traditionallycomfortable with, or responsive to, the rhetoricof liberal rights. The document containswithin it express provisions that were designedas an escape hatch for the judicial andpopular branches of government should theliberal claims to right, and to rule, becometoo oppressive to the practice of parliamentarygovernment, or to a more modest andlimited sense of the proper role of a commonlaw court.

Armed with this information, one mightwell expect the Charter's practical impact tobe minimal. But this has not proved to be thecase. Judges interpret the meaning of sectionone to suit their purposes, and the notwithstandingclause is rarely if ever used, for fearof contradicting the notion of judicial independence.As a result, a new philosophy ofjudicial supremacy, in aid of a late modern orpostmodern rights-based liberalism, guidesCanadian jurisprudence.

It is a philosophy under which the balancingof interests—nominally undertaken byCanadian courts—tends to result fairly consistentlyin the triumph of individual orgroup autonomy. But this is an autonomythat is divorced from the limitations of earlymodern liberalism, particularly the limitationof political consent. In this sense, it is apostmodern, self-expressive liberalism. Assuch, it threatens the right of people toexercise a traditional kind of liberal-democraticprerogative—the freedom of self-government,not to mention the realization ofrights through the slow, steady accretion ofcommon law wisdom, rather than the insistentdemand for immediate results, handeddown from the philosopher kings of thecourtroom.

Post-Common Law Jurisprudence

The change in Canada has been marked. Atits most straightforward, the new philosophywas captured by a Justice of the SupremeCourt of Canada, Bertha Wilson, in herruling in the 1988 case of R. v. Morgentaler,which overturned Canada's penal statutegoverning abortion. In that case, she exaltedindividual autonomy and the right to unconstrainedprivate choice as a means to dignityand self-worth. She agreed with the claimthat the "liberty" mentioned in section sevenof the Charter includes the full control ofone's life and individual autonomy. Relyingon Roe v. Wade, Wilson held that "the respectfor individual decision-making in matters offundamental personal importance reflectedin the American jurisprudence also informsthe Canadian Charter." Further, as to thefundamental "choice" that is abortion, shesaid "It is probably impossible for a man torespond, even imaginatively, to such a dilemmanot just because it is outside the realmof his personal experience (although this is, ofcourse, the case) but because he can relate toit only by objectifying it, thereby eliminatingthe subjective elements of the femalepsyche which are at the heart of the dilemma."And this was conjoined with alamentation that "women's needs and aspirationsare only now being translated intoprotected rights."

To appreciate the general nature of thistype of legal reasoning, one need only compareWilson's words with those of the pluralityopinion of the U.S. Supreme Court, inthe 1992 case of Planned Parenthood of SoutheasternPennsylvania v. Casey: "At the heart ofliberty is the right to define one's ownconcept of existence, of meaning, of theuniverse, and of the mystery of human life."

In the Morgentaler case, the then ChiefJustice of Canada, Brian Dickson, chose torely on a purported breach of the Charterguarantee of security of the person to strikedown the impugned Canadian Criminal Codeprovision restricting abortion. At stake, inthe view of the Chief Justice, was a woman's"bodily integrity," which included integrityin both a "physical and emotional" sense. Asone observer of Canadian constitutionalismhas noted, he thus concealed the court'spolicy-making role "by converting indeterminatesubstantive issues into proceduralquestions."2 This, of course, is a trick that hasbeen well-honed in American courts, beginningin earnest in the mid twentieth century.

The Morgentaler case therefore captures ina nutshell two phenomena critical to understandingthe contemporary Canadian judiciary.First, it illustrates the obsessive concernwith the self that is at the heart of late modernphilosophy and which, despite its democraticveneer, actually prevents the people fromacting in a political sense. Second, it showshow the Charter encourages a kind of reasoningthat is legal, or legalistic, in the mosttechnical sense of the term, and that does nottake full account of competing moral-politicalarguments.

These phenomena have already manifestedthemselves in many Charter cases, andone can safely predict that they will mutuallyreinforce themselves and continue to dominatemuch constitutional litigation in Canada.There is really nothing to stand in their way,regardless of the explicit Charter languagethat was designed to reassure those who wereconcerned with consensual and customarypolitics.

Canadian courts are now among the mostactivist in the world, promiscuously mintingnew rights having to do with everythingfrom criminal punishment to same-sex marriage. Despite the fact that the Charter nevermentions either, Canadian courts have declaredcapital punishment to be unconstitutional,and same sex "marriage" to be constitutionallyguaranteed. They have not onlystruck down laws on rights-based grounds, theyhave rewritten existing laws on those grounds.

For example, in the 1998 case of Vriend v.Alberta, the Court held that the human rightscode of the province Alberta, which specificallyexcluded "sexual orientation" as a protectedcategory, must be read as if sexualorientation were a protected category. Thefacts were as follows: an individual was firedby a Christian college on the basis that he wasa practicing homosexual. He attempted tofile a discrimination complaint with therelevant government human rights commission,but was told he could not do so becausethe act that gave the commission its mandatedid not include sexual orientation as a protectedcategory. Instead, it protected individualsfrom discrimination on the basis of"race, religious beliefs, colour, gender, physicaldisability, mental disability, marital status,age, ancestry or place of origin."

The relevant Charter provision, accordingto the Court, reads as follows:

Every individual is equal before and underthe law and has the right to the equalprotection and equal benefit of the lawwithout discrimination and, in particular,without discrimination based on race, nationalor ethnic origin, colour, religion, sex,age or mental or physical disability.

In interpreting this clause—in a decisionunanimous in the result—the Court broughttogether a number of strains of its newconstitutional reasoning. It held that the"underinclusiveness" of the Alberta humanrights act denied the equal benefit and protectionof the law on the basis of a personalcharacteristic—sexual orientation—that is"analagous" to those which the Charterspecifically enumerates (but does not actuallyenumerate).

In Vriend, the Supreme Court of Canadaundoubtedly delivered one of the morenotable judgments yet rendered by a supremejudicial tribunal in the common lawworld. A government in Canada now neednot pass a specific law that infringes on analleged constitutional right in order to bechallenged in court. Indeed, it may bechallenged if it does not pass legislation thatfurthers a sweepingly egalitarian humanrights agenda; and its failure may be rectifiedby a judicial "reading in" of the absentprovision.

Further, the Supreme Court does not finditself bound to interpret, even broadly, theactual words of the Charter. Rather, wherea preferred clause is absent (such as a guaranteeof nondiscrimination against homosexuals)it too may be "read in" if the Courtdeems it to be "analogous" to any clause thatactually is written in the document. In StalinistRussia, people were famously air-brushedout of official photographs; in Canada, clausesare openly air-brushed in to legal documents.In this continuing magic show, the role ofMerlin is played by the Supreme Court ofCanada. In a practice completely alien tocommon law constitutionalism, Parliamentand the provincial legislatures have, in importantrespects, been reduced to mere errandboys for the judicial branch. Judgeshave become prophets and priests of the newHoly Writ.

In Canada, we have witnessed the effectivedestruction of parliamentary supremacythrough the assertion of a stunningly broadpower of courts to strike down and read in asthey please. But this new attitude of judicialomnipotence has also displaced an allied, ifmore subtle, aspect of the traditional commonlaw understanding: that the primaryjudicial responsibility is to decide matters ofdispute between specific parties. Not onlywould courts not strike down legislation onconstitutional grounds, other branches ofgovernment could posit, through action andargument, their interpretation of what adherenceto the timeless (and, in the case ofEngland and largely of Canada—unwritten)constitution requires, even if this interpretationwere at odds with the judicial interpretationas expounded in a particular case. Thelegislative branch could, for example, passanother law to clarify the language of theexisting statute, or to deal differently withsimilar cases in the future. Or the executivebranch, without affecting the rights of theparties as adjudicated in the particular instance,could act on its contrary view in othercases and in general (as did Abraham Lincolnin arguing and acting contrary to the principlesof the U.S. Supreme Court's ruling inthe infamous Dred Scott decision, which heldslaves to be property). But the view that otherbranches of government—and especiallyParliament—might assert themselves againstthe judicial branch has been almost entirelyoverridden in Canada. And this happened inless than a single generation.

Propitiously for the advocates of the newlegalism, the Charter was introduced at atime when postmodern thinking was extendingits reach among the intelligentsia, includingthose in the legal academy. Such thinkingproved to be the perfect intellectual vehiclefor the client groups of the Charter as theysought to build a post-common law Canada.Postmodernism is an amalgamation of philosophical,literary, and linguistic theories thatbegin with skepticism of the power of reasonto tell us anything about the nature of thecosmos or our obligations in it. As such, itgives modernist, rights-based liberalism anihilist edge. For many postmodernists,"knowledge" of moral-political things isnothing more than what can be defined bythe powers that be in any given society."Knowledge" accumulates in proportion tothe degree of the individual's internalizationof the norms laid down by those powers,unless that person can somehow successfullyresist the powers that be. Recognition of theprimacy of will or self-assertion, rather thanreason or objective inquiry, comes to be thedominant modus operandi of a legal establishmentenamored of postmodernism. Creativeactivity becomes the essence of thepolitical: here a power discourse to bedeconstructed or imposed, there an opportunityfor self-creation, everywhere an assertionof will. Such self-assertive claims onbehalf of allegedly marginalized individualsor groups find their natural home in courts oflaw, where the consent of fellow citizens neednot be sought, and due regard for ancientunderstandings need not be exhibited inorder to achieve substantial cultural change.

Canada, as it turned out, provided aparticularly fertile ground for such powergames, and such a separation from commonlaw constitutionalism. One could not visit alaw school classroom in Canada in the 1980sor 1990s without finding rooms full of 20-somethings excited by these prospects, aspostmodern ideas and their implement—inthe form of the Charter—came to coexist.Legal education in Canada began to reflectthe triumph of a set of interpretations of themodern project as that project unfolded inthe formerly "British" part of North America:that the individual, and certain preferredgroups of individuals, were paramount. Eachwas, in its own unique ways, to be protectedfrom the overreaching and unjust intrusionsof all levels of government or society—oreven, in the case of same-sex "marriage,"from the definitions contained within establisheddictionaries. This protection would beguaranteed by a new class within Canadiansociety. It would be a class of young lawyerstrained in the intricacies and potential of theCharter. The new class would be educated bya group of legal academics already broadlysympathetic to the idea of increased judicialinvolvement in Canadian life. Given time,this new class would first convince the existingmembers of the judiciary of the rectitudeof a new Canada in which judges, ratherthan citizens or their elected legislatures,made final determinations on matters ofgreat moral-political import. And, giveneven more time, this new class would itselfcome to dominate the Canadian bench andlegal academy.

If one were to scour the course syllabi ofCanadian law schools over the past twenty totwenty five years, one would search in vainfor two things: a sense that anything mighthave been lost with the introduction of theCharter, and an account of rights rooted inanything other than the fashions of the currentgeneration. With respect to the former,one Canadian observer has noted that "notone public voice was raised in opposition tothe end of British North America."3 Furthermore,the "Charter has also played itspart in encouraging us to forget our ownhistory. Law students are unshakeably convincedof two things about the Canada thatexisted before the Charter. First, Canadianssimply had no rights until we adopted theCharter and, second, until it got a constitutionalguarantee of rights, Canada was justnot a proper, respectable country."4

One would perhaps not expect to find alament for loss within the corridors of thelegal academy, whose interests were furtheredby converting formerly political claimsinto legalistic ones. Neither would one expectto find much recognition that the Canadathat existed prior to 1982 was, after all, atolerable parliamentary democracy. In thenew dispensation, this label can, ironically,only be worn by a nation wherein all mannerof moral and political disputes are, alongAmerican lines, constitutionalized.

Bills of Rights and Judicial Power

And here we would do well to remindourselves of the great debate over the U.S.bill of rights—and the nature of judicialpower in general—that took place during the1787-1789 struggle for the ratification of theU.S. Constitution. Alexander Hamilton, inFederalist 84, warned Americans of the foundinggeneration of the dangers of a writtenenumeration of rights. In arguing against abill of rights, Hamilton—to most Americansof today—might seem a bit of a crank. Butcontemporary Canada demonstrates the wisdomof Hamilton's political theory and prognostications.

Hamilton first claimed that a bill of rightswould, in important senses, be redundant. Inaddition to the overall structure of governmentcreated by the proposed federal Constitution—including its republican characteralong with its separation of powers doctrineand its extended sphere—the Constitutioncontains within it a number of specific provisions,many derived directly from Englishconstitutional norms and practices, that ineffect guarantee the rights of citizens. Suchprovisions include the guarantees of habeascorpus and trial by jury, the prohibition onbills of attainder and ex post facto laws, andthe precise and limited definition and punishmentof the high crime of treason.Hamilton notes Blackstone's claim that habeascorpus—"The Great Writ"—is the bulwarkof the British Constitution. Commonlaw constitutional principles and practices,built up over many centuries of Englishexperience, are far greater protections forliberty than parchment barriers in the formof rights declarations.

But Hamilton goes beyond this in reflectingon the implications of a bill of rights forthe question of the civic education andacculturation of citizens. A written enumerationof rights is a poor exercise in civiceducation insofar as it implies that rights areprivileges given by the sovereign unless specificallyreserved to the people. In otherwords, such an enumeration will confusecitizens as to the origins of their rights, whichexist in nature and the design of nature'sGod, and have been revealed and protectedin time through the slow accretion of commonlaw wisdom. A proper understanding ofthe dignity and station of human beings,which can never be "enumerated," is atissue. Such things ought not to be subject toinfinite redefinition, expansion, or contractionat the whim of positive law, especiallynational positive law. In America, the peoplehave not surrendered to the national governmentthe rights that would be enumerated,and therefore nothing needs to be reserved.In Hamilton's words, "a minute detail ofparticular rights is certainly far less applicableto a Constitution like that under consideration,which is merely intended to regulatethe general political interests of the nation,than to a constitution which has the regulationof every species of personal and privateconcerns."

And herein lies the danger that goes wellbeyond redundancy. Bills of rights "wouldcontain various exceptions to powers whichare not granted; and, on this very account,would afford a colorable pretext to claimmore than were granted. For why declarethat things shall not be done which there is nopower to do?" Such bills "furnish, to mendisposed to usurp, a plausible pretense forclaiming that power. They might urge witha semblance of reason that the Constitutionought not to be charged with the absurdity ofproviding against the abuse of an authoritywhich was not given." The proper interpretationof citizen rights, which undoubtedlyexist and have existed for centuries withinthe English tradition, always depends uponproper "public opinion, and on the generalspirit of the people and of the government."It is precisely this public opinion and spiritthat are likely to be corrupted by an "injudiciouszeal for bills of rights" that at onceinflame the soul and provide ambitious menthe tools to further their ambition. The mere"aphorisms" that tend to appear in bills ofrights are, for Hamilton, things that "wouldsound much better in a treatise of ethics thanin a constitution of government." They are,in short, invitations to political scheming.

And nowhere is this scheming of ambitiousmen more likely to be found than in thejudicial branch—whether among the judgesthemselves, or the lawyers and litigants whoappear before them. The Anti-Federalistsfeared the dangers of federal judicial power,even as they demanded the inclusion of a billof rights in the American constitutional plan.The eventual inclusion of the Bill of Rightscan be considered one of their great victoriesand contributions to American constitutionalism,but in winning this victory they providedwhat would prove to be a useful tool forjudicial usurpation. Still, Anti-Federalistanalysis of the essential characteristics of thejudicial power that was created at least inpotential by the Constitution remains commanding.Such power can only be understoodby setting it into relief against what itis not: an outgrowth of common law constitutionalism.

As the New York Antifederalist "Brutus"wrote in 1788:

the supreme court under this constitutionwould be exalted above all other power inthe government, and subject to no controul...I question whether the world ever saw, inany period of it, a court of justice investedwith such immense powers, and yet placedin a situation so little responsible.... Thejudges in England, it is true, hold theiroffices during their good behaviour, butthen their determinations are subject tocorrection by the house of lords; and theirpower is by no means so extensive as that ofthe proposed supreme court of theunion....they in no instance assume theauthority to set aside an act of parliamentunder the idea that it is inconsistent withtheir constitution. They consider themselvesbound to decide according to theexisting laws of the land.

Brutus's elucidation of the limits of judicialpower in English common-law constitutionalismcontrasts markedly with what hesees, presciently, as the inevitability of theU.S. Supreme Court's deciding cases accordingto its loose sense of the spirit ratherthan the letter of the document:

There is no power above them, to controulany of their decisions. There is no authoritythat can remove them, and they cannot becontrouled by the laws of the legislature. Inshort, they are independent of the people,of the legislature, and of every power underheaven. Men placed in this situation willgenerally soon feel themselves independentof heaven itself.

For the Anti-Federalists as well as theFederalists, the political art was largely definedby the fact that there will always be"men disposed to usurp." In one of the manyironies of history, the Anti-Federalists fearedthe dangers of unchecked judicial power,but not the bill of rights, while Hamilton andother Federalists downplayed the dangers ofthe federal judiciary while emphasizing thedangers of a bill of rights. As it has turned out,both sides were half right.

It took a great deal of time for U.S. courtsto feel themselves independent of every powerunder heaven—essentially from the Foundingto the middle part of the twentiethcentury. It took Canadian courts only a fewyears, once they were given the green lightof the Charter, to upend the great traditionof common law constitutionalism. The differenceis accounted for by the fact that themodern language of rights had to becomemore virulent, to the point of merging withthe nihilism of postmodern assertion. TheCharter added the practical tools to an alreadyimpressive array of intellectual tools inthe kit of those usurpers of all parties whomade war on the earlier constitutional wisdom.By itself, neither the Charter norpostmodern thinking could have so thoroughlyand rapidly transformed Canada—a"Tory" nation steeped in a common lawconstitutionalism that existed within thememory of so many living Canadians. TheseCanadians, having borne witness to the destructionof their organic constitution, suchthat it was, can offer with George Grant alament that is "not based on philosophy buton tradition. If one cannot be sure about theanswers to the most important questions,then tradition is the best basis for the practicallife. Those who loved the older traditionsof Canada may be allowed to lament whathas been lost, even though they do not knowwhether or not that loss will lead to somegreater political good."5

NOTES

  1. Portions of the argument here presented have beenadapted from the author's previous writings, including"The Language of Rights and the Crisis of the LiberalImagination," in Anthony A. Peacock, ed., Rethinking theConstitution: Essays on Canadian Constitutional Reform,Interpretation, and Theory (Oxford University Press, 1996)and Civil Rights and the Paradox of Liberal Democracy(Lanham, MD: Lexington Books, 1999).
  2. ChristopherP. Manfredi, Judicial Power and the Charter (Toronto:McClelland & Stewart, 1993), 118.
  3. Robert Martin, "ALament for British North America," in Peacock, Rethinkingthe Constitution, 11.
  4. Ibid.
  5. George Grant,Lament for a Nation: The Defeat of Canadian Nationalism(Ottawa: Carleton University Press, 1989), 96.