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Canada's Constitutional Revolution: From Legislative to Constitutional State*

Published online by Cambridge University Press:  04 July 2014

Lorraine Eisenstat Weinrib
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… ‘true’ democracy recognizes the power of the constitution — fruit of the constituent authority — to entrench the fundamental human rights and the basic values of the system against the power of the majority. Such a limitation of majority rule does not impair democracy but constitutes its full realization.

In 1982, Canada's written constitution acquired a bill of rights. The Canadian Charter of Rights and Freedoms, 1982 emerged as the product of a prolonged debate as to the propriety and desirability of protecting, by judicial review, an array of constitutional norms as part of the “supreme law” of Canada. The richness of that debate precipitated a new constitutional model that enlisted not only the courts, but the legislature and executive as well, in the project of rights-protection.

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Israel Law Review , Volume 33 , Issue 1 , Winter 1999 , pp. 13 - 50
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1999

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References

1 United Mizrahi Bank Ltd., et al. v. Migdal Cooperative Village, et al. (1995) 49 P.D. 221 (para. 47) (English translation).

2 Basic Law: Freedom of Occupation (S.H. 1994, No. 1454, p. 90) and Basic Law: Human Dignity and Liberty (S.H. 1992, No. 1391, p. 150).

3 “At the beginning, individual rights were applied only within the framework of law. In our time laws are only applied within the framework of individual rights”. Erica-Irene A., Daes, “Restrictions and Limitations on Human Rights”, (1971) 79 III René Cassin Amicorum Discipulorumque Liber at 84Google Scholar.

4 Like Israel, Canada engaged an old constituent power to entrench the Charter, the vestigial authority of the British Parliament to amend Canada's constituent instrument, the British North America Act, 1867. See Re Resolution to Amend the Constitution [1981] 1 S.C.R. 753Google Scholar (the Patriation Reference) and Re Objection by Quebec to Resolution to Amend the Constitution [1982] 2 S.C.R. 793 (the Quebec Veto Reference)Google Scholar.

5 Weinrib, Lorraine E., “Trudeau and the Canadian Charter of Rights and Freedoms: A Question of Constitutional Maturation”, in Cohen, Andrew and Granatstein, J.L., eds., Trudeau's Shadow (Random House, 1998)Google Scholar. The Charter remains popular. In the early 1990's public opinion supported the Charter more than other national institutions such as the national Parliament, the Royal Canadian Mounted Police, bilingualism, multiculturalism and the monarchy. In a study released in April 1999, Professor Joseph Fletcher of the University of Toronto found that 82% of Canadians favoured the Charter as “a good thing”. By a 2:1 measure, they approved the authority of courts to review and invalidate legislation. The Supreme Court of Canada garnered a 76% approval rating. The polling was conducted, by chance, just after two exceptionally controversial court rulings, one a lower court decision invalidating the criminal prohibition against possession of child pornography, now under appeal, and the other a Supreme Court of Canada ruling stipulating that there is no implied consent to sexual assault. Simpson, Jeffrey, “The Fondness of Canadians for their Charter”, Globe & Mail, April 22, 1999, A15Google Scholar.

6 Vallinder, Torbjorn, “The Judicialization of Politics — A World-Wide Phenomenon: Introduction”, 15 Int'l Pol. Sci. R. 91CrossRefGoogle Scholar; Shapiro, Martin and Stone, Alec, “The New Constitutional Politics of Europe”, (1994) 26 Comp. Political Studies 397CrossRefGoogle Scholar; Tate, C. Neal and Valinder, Torbjorn, eds., The Global Expansion of Judicial Power (New York, New York University Press, 1995)Google Scholar.

7 Why did Canada and Israel, with such different constitutional pasts, find this institutional arrangement attractive? Part of the answer may lie in the shared British background to our legal systems, including the acceptability of judges reviewing ordinary law for consistency to higher law and the relegation of legal rights to independent and legally expert courts of law. These features strongly suggest that rights protection, as argued in this paper, should yield only to normative considerations.

8 Examples include the discriminatory denial of employment opportunities and the franchise; the removal of the right of citizens, natural born and naturalized, to remain in Canada; restrictions on basic political rights and social benefits.

9 For a full treatment of the incident described in this section, including a consideration of all the Canadian constitutional cases involving claims by the Jewish community, see Weinrib, Lorraine E., “‘Do Justice to Us’: Jews and the Constitution of Canada”, in Brown, M., ed., Not Written in Stone: Jews, Constitutions and Constitutionalism in Canada (forthcoming)Google Scholar.

10 Select Committee on Bill No. 12, Respecting the Lord's Day — Minutes of Evidence, April 27, 1906, p. 187.

11 Ibid.

12 Ontario Law Reform Commission, Report on Sunday Observance Legislation, 1970, at 43-44, citing 74 H.C. Deb. (Can.) at cols. 1010-1011; 1014. Mr. Fitzpatrick made these comments in moving second reading, on April 5,1906. The idea expressed here was that Jews (despite the fact that they held Canadian citizenship) were foreigners because of their membership in the Jewish nation. Such membership meant that they reserved their ultimate loyalty to a future Jewish state and were thus incapable of the allegiance held by British subjects to their King.

13 The Constitution Act, 1867, sec. 93. (This is the name, since 1982, of the British North America Act, 1867, U.K., 30 and 31 Victoria, c. 3.) These rights, held against the province of residence, were to be enforced by appeal to the federal executive, not by judicial review.

14 R. v. Big M Drug Mart Ltd. [1985] 1 S.C.R. 295 at 336, per Dickson J. In this case, the Court overturned its restrictive interpretation of freedom of religion in the Sunday observance context under the statutory Canadian Bill of Rights. See Robertson and Rosetanni v. The Queen [1963] S.C.R. 651. Here also, at 344, the Court established the “purposive” mode of rights interpretation, looking at the interests that the guarantee was meant to protect. Reference is to be made to the character of the Charter, its larger objects, its language, the historical origins of the concepts, and its connection to other Charter rights and freedoms. This interpretation is to be generous, not legalistic, as well as faithful to the appropriate linguistic, philosophic and historical contexts. Big M has been cited on this basis by the South African Constitutional Court (State v. Makwanyane, CCT/3/94, at para. 19, per Chaskalson P.) and in Bank Mizrachi, supra n. 1, at para. 86, per Barak P.

15 Charter sec. 27.

16 Big M Drug Mart, supra n. 13, at 338.

17 R. v. Keegstra [1990] 3 S.C.R. 697, [1991] 2 W.W.R. 1., 61 C.C.C. (3rd) 1. See also Weinrib, Lorraine E., “Hate Promotion in a Free and Democratic Society: R. v. Keegstra”, (1991) 36 McGill L.J. 1416–1449Google Scholar, reprinted in Heyman, S.J., ed., Hate Speech and the Constitution (New York, Garland Publishing, 1996)Google Scholar. In R. v. Zundel [1992] 2 S.C.R. 731, 95 D.L.R. (4th) 202, the Supreme Court of Canada struck down a law making it an offence to wilfully and knowingly publish a false statement that causes or is likely to cause harm. The offence, in addition to being overbroad and vague, had no permissible purpose beyond its thirteenth century origin as a means of preserving political harmony as between subjects and the nobility. Presumably prosecution of Zundel under the hate speech law would have succeeded, given that his Holocaust denial seems to share many characteristics of Keegstra's anti-semitic tirades, but the necessary fiat from the provincial Attorney General was lacking. This precondition for prosecution should be re-examined in light of the Charter ruling in R. v. Keegstra. Zundel, who is a Holocaust denier of world stature, did not elude conviction on the merits of his freedom of expression argument but on more formal grounds. Canada does not have a free-standing Holocaust denial prohibition.

18 See Smith v. Collin 439 U.S. 916; R.A.V. v. City of St. Paul 505 U.S. 377 (1992); Wisconsin v. Mitchell 508 U.S. 476 (1993). More generally, see Lederer, Laura and Delgado, Richard, eds., The Price We Pay: The Case Against Racist Speech, Hate Propaganda, and Pornography (New York, Hill and Wang, 1995)Google Scholar; Moran, Mayo, “Talking About Hate Speech: A Rhetorical Analysis of American and Canadian Approaches to the Regulation of Hate Speech”, (1994) Wisc. L.R. 1425Google Scholar. McGoldrick, Dominique and O'Donnell, Thérèse, “Hate Speech Law Consistency with National and International Human Rights Law”, (1998) 18 Legal Studies 453CrossRefGoogle Scholar.

19 Brief of Canadian Jewish Congress, prepared by Lyle S.R. Kanee, submitted to the Supreme Court of Canada in Vriend v. Alberta [1998] 1 S.C.R. 493, 156 D.L.R. (4th) 385, at para. 7. Here the C.J.C. took the position that the Charter required a provincial legislature to prohibit same-sex discrimination in private dealings. It invoked the idea that all discrimination, whether based on religion or sexual orientation, is inimical to the Charter. On file with the author.

20 Reference Re Bill 30, an Act to Amend the Education Act (Ontario), [1987] 1 S.C.R. 1148, 40 D.L.R. (4th) 18 and Adler v. Ontario [1996] 3 S.C.R. 609.

21 The Supreme Court has read the 1867 rights as not merely entitlements but as exclusive entitlements, precluding their extension to other minority groups. A better resolution might have included a more detailed consideration of the disadvantages that follow from recognizing this exclusivity. The 1867 religious minorities' entitlement is to a publicly financed separate school system. Equality values might attach not to that entitlement itself but to the fact that other minorities who create their own private, religious schools receive no benefit from the taxes that they pay for the public school system. Some fear that allowing religious minorities to use some portion of their taxes to support the secular part of their private religious schools would lead to a break-down of the public school, an undesirable result if one regards public education as the induction to liberal citizenship principles. However, these private schools exist whether the state allows tax diversion or not. It might be better to provide the oversight that tax diversion would allow, to ensure that the students at these schools enjoy a fully rounded education, necessary for full participation in a liberal democratic state.

22 See, for example, Laskin, Bora, “An Inquiry into the Diefenbaker Bill of Rights” (1959) 37 Can. Bar. R. 77Google Scholar; Balcome, Randall et al. , eds., Supreme Court of Canada Decision-Making: The Benchmarks of Rand, Kerwin and Martland (Toronto, Carswell, 1990)Google Scholar; Williams, George, “Civil Liberties and the Constitution — A Question of Interpretation” (1994) 5 Public L.R. 82Google Scholar; Zamir, Itzhak and Zysblat, Allen, eds., Public Law in Israel (Oxford, Oxford U.P., 1996)Google Scholar; Lahav, Pnina, Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century (Berkeley, U. Calif. Press, 1997)Google Scholar; Weinrib, Lorraine E., “Sustaining Constitutional Values: The Schreiner Legacy”, (1998) 14 S.A. Journal on Human Rights 351CrossRefGoogle Scholar.

23 For an introduction to the Charter's case law and commentary, see, Macklem, , Risk, , Rogerson, , Swinton, , Weinrib, and Whyte, , eds., Canadian Constitutional Law (Toronto, Emond Montgomery, 2nd ed., 1997). Supreme Court of Canada judgments can be accessed at http://www.droit.umontreal.ca/doc/csc-scc/en/index.html.Google Scholar

24 On occasion judges had forwarded what we now understand as rights-norms in the interstices of federalism analysis, building what was termed an “unwritten bill of rights”. Eventually it expressly abandoned that mode of analysis. The Supreme Court had also failed to give effect to a federal, statutory Bill of Rights, a document that was unclear as to the nature of its guarantees and institutional roles. The inability of the political or the legal system to “get it right” paved the way for the Charter. See ibid., chapters 16 (“The Common Law Constitution”), 17 (“Rights and Federalism”), 18 (“The Canadian Bill of Rights) and 19 (“The Advent of the Charter”).

25 For the drafting history, see Weinrib, Lorraine E., “Constituting Constitutional Change in Canada: of diligence and dice”, (1992) 42 U. Toronto L.J. 207CrossRefGoogle Scholar.

26 Weinrib, Lorraine E., “Canada's Rights Revolution: Paradigm Lost”, in Schneiderman, David, ed., Putting Rights in Their Place: Comparing Constitutional Rights in Canada and United States (forthcoming)Google Scholar.

27 Here the Canadian Courts followed Sunday Times v. United Kingdom (1979) 2 EHRR 271. See also, Garibaldi, Oscar M., “General Limitations on Human Rights: the Principle of Legality”, (1976) 17 Harv. Int'l L.J. 503Google Scholar.

28 R. v. Oakes [1986], 1 S.C.R. 103, 26 D.L.R. (4th) 200. This is the Supreme Court of Canada's classic statement of its approach to the guarantee and limitation clause. The Court described the values appropriate to limitation in this way, at S.C.R. 136: “The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified”. See also, Weinrib, Lorraine, “The Supreme Court of Canada and Section 1 of the Charter”, (1988) 10 Supreme Court L.R. 469Google Scholar.

29 The Canadian override clause may be applied to suppress the fundamental freedoms (religion, expression, association), the legal rights and the equality rights. It does not extend to democratic or mobility rights or to the minority language education rights. These latter rights were considered appropriate to judicial finality because they were similar to the subject matter of judicial review before the Charter. The presence of the override clause in section 8 of Basic Law: Freedom of Occupation but not in Basic Law: Human Dignity and Liberty produces a similar pattern. See Metreal v. The Knesset of Israel H.C. 4676/94, at para. 18-21.

30 Charter sec. 33. See also, Weinrib, Lorraine E., “Learning to Live With the Override”, (1990) 36 McGill L.J. 541–571Google Scholar.

31 The Canadian Constitution has been interpreted, without much textual direction, to secure the determination of questions relating to legal rights to courts of law, beyond the reach of administrative tribunals that do not exercise judicial functions. See Macklem, , Risk, , Rogerson, , Swinton, , Weinrib, and Whyte, , eds., Canadian Constitutional Law (Toronto, Emond Montgomery, 2nd ed., 1997) chap. 14Google Scholar, “The Judicial Function”. See also, Manitoba Provincial Judges Association v. Manitoba (Minister of Justice), (1998), 155 D.L.R. (4th) 1.

32 [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200. See also Weinrib, Lorraine E., “The Supreme Court of Canada and Section One of the Charter”, (1988) 10 Supreme Court L.R. 469Google Scholar.

33 For a recent full articulation of the limitation tests in the Supreme Court of Canada, see Thomson Newspapers Co. v. Canada (Attorney General), (1998), 159 D.L.R. 4th 385

34 Reference re Secession of Quebec (1998), 161 D.L.R. 4th 385.

35 Hogg, Peter W. and Bushell, Allison A., “The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't Such a Bad Thing After All)”, (1997) 35 Osgoode Hall L.J. 75Google Scholar.

36 See Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, 54 D.L.R. (4th) 577.and Weinrib, Lorraine E., “Learning to Live With the Override”, (1990) 36 McGill L.J. 541–571Google Scholar.

37 In addition to Big M Drug Mart, Keegstra, Thomson Newspapers and the Quebec Secession Reference referred to earlier, see R. v. Morgentaler, [1998] 1 S.C.R. 30, 44 D.L.R. (4th) 385; Vriend v. Alberta, [1998] 1 S.C.R. 493, 156 D.L.R. (4th) 385; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624,151 D.L.R. (4th) 577; Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, 151 D.L.R. (4th) 385. Both Thomson Newspapers and Libman are examples of judicial oversight of the openness and fairness of the electoral process.

38 Edwards Books and Art Limited v. The Queen, [1986] 2 S.C.R. 713, 35 D.L.R. (4th) 1; Egan v. Canada, [1995] 2 S.C.R. 513, 124 D.L.R. (4th) 609; R. v. Butler [1992] 1 S.C.R. 452, 89 D.L.R. (4th) 499; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, 107 D.L.R. (4th) 342.

39 This is especially the case if the ruling stands against a similar decision in the U.S. system. The American Bill of Rights case law slips back and form from legislative state to constitutional state in various areas and thus makes a perplexing model for a fledgling constitutional state on the post-war model.

40 Accordingly, legislatures must clearly define the discretion delegated to subordinate decision-makers.

41 The idea that the courts have taken over the legislative function is even weaker in the context of Charter litigation relating to common law rules. Here the courts must examine their own prior handiwork for compliance with the Charter's strictures. The defence of the existing rule will usually fall to a private party, not the state, and the court will be free to refashion the rule to achieve compliance without the option of sending the issue back to the legislature. The legislature can take up the question of course but may choose to leave the area regulated by the common law as well.

42 For an overview of the Charter critics see Sigurdson, Richard, “Left- and Right-Wing Charterphobia in Canada: A Critique of the Critics”, (1993) 7–8 Int'l J. Can. Studies 95Google Scholar.

43 Examples of this critique include Petter, Andrew and Hutchinson, Alan, “Private Rights/Public Wrongs: The Liberal Lie of the Charter” (1988) 38 U. Toronto L.J. 278Google Scholar; Hutchinson, Alan, Waiting for Coraf (Toronto, University of Toronto Press, 1995)Google Scholar; Mandel, Michael, The Charter of Rights and the Legalization of Politics in Canada (Thompson Educational Publishers, 2nd ed., 1994)Google Scholar; Bakan, Joel, Just Words, (Toronto, University of Toronto Press, 1997)CrossRefGoogle Scholar.

44 R. v. Morgentaler [1988] 1 S.C.R. 30, 44 D.L.R. 385; R. v. Downey, [1992] 2 S.C.R.10, 90 D.L.R. (4th) 499.

45 Rocket v. Royal College of Dental Surgeons of Ontario [1990] 2 S.C.R. 232, 71 D.L.R. (4th) 68 (dental advertising); Peterborough (City) v. Ramsden [1993] 2 S.C.R. 1084, 106 D.L.R. (4th) 233 (posters); R. v. Keegstra [1996] 1 S.C.R. 458, 105 C.C.C. (3d) 19 (hate speech); Ross v. New Brunswick School District No. 15 [1996] 1 S.C.R. 825, 133 D.L.R. (4th) 1 (neo-nazi teacher); R. v. Butler [1992] 1 S.C.R. 452, 89 D.L.R. (4th) 449 (pornography).

46 Thomson Newspapers Co. v. Canada (Attorney General) [1988] 1 S.C.R. 877 (release of polling data on eve of election); Libman v. Attorney General of Quebec [1997] 3 S.C.R. 569 151 D.L.R. (4th) 385 (restrictions on participation in elections and referenda).

47 Law v. Minister of Human Resources Development (1999) 170 D.L.R. (4th) 1, released March 25,1999 (discrimination based on age in pension scheme); Eldridge v. British Columbia (Attorney General) [1997] 3 S.C.R. 624,151 D.L.R. 4th) 577 (discrimination based on physical disability in provision of health services); Vriend v. Alberta [1988] 1 S.C.R. 493, 156 D.L.R. (4th) 385 (discrimination based on sexual orientation in employment context); A.G. Ontario v. M. and H., judgment of S.C.C. released May 20, 1999 (same sex couples excluded from judicial determination of spousal support obligations).

48 Stuart, Don, Charter Justice in Canadian Criminal Law (Scarborough, Ontario, Carwell, 2nd ed., 1996)Google Scholar; Stratas, David, The Charter of Rights in Litigation (Aurora, Ontario, Canada Law Book, 1997)Google Scholar.

49 For the right-wing critique of the Charter, see the Knopff, Rainer and Morton, F.L., eds., Charter Politics (Scarborough, Ontario, Nelson Canada, 1992)Google Scholar, “Permanence and Change in a Written Constitution: The ‘Living Tree’ Doctrine and the Charter of Rights, (1990) 1 Supreme Court L.R. 533Google Scholar; Morton, F.L., “The Charter Revolution and the Court Party”, (1992) 30 Osgoode Hall L.J. 627Google Scholar; Riddell, Troy Q. and Morton, F.L., “Reasonable Limitations, Distinct Society and the Canada Clause: Interpretive Clauses and the Competition for Constitutional Advantage”, (1998) 31 Can. Journal Pol. Sci. 467CrossRefGoogle Scholar; Knopff, Rainer, “Populism and the Politics of Rights: The Dual Attack on Representative Democracy” (1998) 31 Can. Journal Pol. Sci. 683CrossRefGoogle Scholar.

50 Mureinik, Etienne, “A Bridge to Where? Introducing the Interim Bill of Rights”, (1994) 10 S.A. Journal on Human Rights 31CrossRefGoogle Scholar.