Conversations among Canadian conservatives often drift into grumbling about the courts. Their complaint is with the judiciary’s decades-long campaign to remake the country in its progressive image, a process that began soon after adoption of the Canadian Charter of Rights and Freedoms in 1982. University of Calgary political scientists Ted Morton and Rainer Knopff’s book decrying this process, The Charter Revolution and the Court Party, is as relevant today as it was upon its publication nearly two decades ago. But as perceptive as Morton and Knopff may have been, their work has done little to deter judicial activism. Conservative attempts to stand athwart Canadian judicial history yelling “Stop!” have been to little avail.
Two troubling decisions in the last year have reignited discussion about this slow-burning transformation of politics and society. In R. v. Comeau, the Supreme Court of Canada decided 9-0 that protecting the administrative state was more important than the constitutional guarantee of interprovincial free trade, ruling that protecting the power of governments to impose trade barriers and tariffs via regulations trumps Section 121 of the Constitution. And in Trinity Western University v. Law Society of Upper Canada, the court ruled 7-2 that “Charter values” trump the right to free association, when it held that covenants prescribing conventional Christian morality violated the Charter. Then, in a speech this fall, Madam Justice Rosalie Abella – one of the lead authors of the Trinity Western decision – made it official, spelling out her understanding of the Supreme Court as the “final adjudicator of which contested values in a society should triumph.”
Abella is not an outlier; much of Canada’s judicial class sees the Supreme Court as a guardian council of philosopher-kings (and queens) guiding Canadians toward a more just society. Imagining a right to assisted suicide after multiple rulings explicitly rejected it, or issuing a “benediction” proclaiming the right to strike, are just two examples. Opponents who see such actions as hubristic and harmful typically call for a restrained judiciary that, instead of legislating from the bench, sticks to “mere application” of the law. Although well-meaning and laudable in principle, this approach has, quite simply, failed. After more than 35 years of unrestrained Charter jurisprudence, a new approach is needed.
Judicial restraint isn’t enough
Because the Charter has so politicized the courts, conservatives must learn to deal with the judiciary on these terms. Instead of continuing the futility of decrying judicial activism, conservatives need to come to terms with it and work to create an intellectually broader and more diverse judiciary. For that, conservatives need a judicial philosophy, a coherent, organized, alternative vision with the philosophical and jurisprudential rigor and institutional capacity to challenge the vision embodied in rulings by Abella and like-minded justices. We need what could be called a “Canadian originalism” – a judicial philosophy whose adherents hew as closely as possible to the original wording of the Charter, respect the intentions of its framers, and who don’t ignore or reject the even older precedents and ancient principles that have formed Canadian law and Canada’s constitution. In the words of Canadian jurist Grant Huscroft, “The question is not whether the judiciary must interpret the constitution but how it should do it.”
People often misunderstand what it means to say that courts are “political.” It doesn’t mean judges are crassly partisan, but that judicial decisions go beyond mere application of the law. Courts often rule on matters that should be left to legislative bodies, effectively making new law, overturning or changing old ones, creating new rights for some groups, imposing new obligations on others, and restricting the actions of elected legislatures in the process. Some court decisions have even forced legislatures to adopt measures that can only be implemented through expenditure of tax dollars, such as spending on minority-language education. For hundreds of years in Westminster-style democracies, this had been a clear line between judicial and parliamentary authority that no court dared cross.
A restrained judiciary conscious of its limited function would understand that when the law is silent, courts should be silent. One can have a policy preference and still think it a matter beyond constitutional concern. As the late, great U.S. Supreme Court justice Antonin Scalia once said, “The judge who always likes the results he reaches is a bad judge.”
The recent hysteria over Ontario Premier Doug Ford’s threatened invocation of the Charter’s “notwithstanding” clause to overturn an apparent lower court usurpation of the Ontario legislature’s jurisdiction is a good example. One can disagree with Ford’s decision to shrink Toronto’s city council and still think the matter should remain beyond the realm of the courts. It is a measure of how conditioned Canadians are to defer to judicial authority that public opinion seemed to break along policy or even personal rather than jurisdictional lines, backing the court if they liked the policy-related consequences and vice-versa.
For many conservatives, the belief is that courts and judges should know their place, exercise restraint, and that’s that. But in the Charter era, our judicial branch has become inescapably political. Morton and Knopff lamented that the “long tradition of parliamentary supremacy has been replaced by constitutional supremacy verging on judicial supremacy.” They blamed this on a broad coalition of special interest groups (often funded at least in part by governments whose prerogatives the court then encroaches upon) that use the judiciary to force their policy agenda on the country. This problem is rooted in the Charter itself.
When the Charter was proclaimed in 1982, it entrenched a set of abstract rights at the heart of our political order. An abstract right is an entitlement citizens possess in theory but that needs to be applied materially in order to be made concrete and enforceable by law. The right to life, for example, is guaranteed in Section 7. That seems the most basic and fundamental right of all. But it isn’t at all clear or uncontested as to what it means in practice. Some believe the right to life begins at the moment of conception; many others do not. Some think it should be attached to positive demands on other people, like universal healthcare or basic sustenance. And whatever the Supreme Court said in its most recent ruling on assisted suicide, there are still plenty of people who dispute that the right to life also includes the right to assistance in ending one’s own life.
In theory, a strong system of judicial oversight that protects rights is something all reasonable people should prefer. But the Charter is neither an instruction manual nor a set of clear, simple declarations; it’s a philosophical document full of ambiguous philosophical concepts. Rights are moral concepts, which makes reasonable disagreement inevitable. While people might mostly agree to the existence of rights, consensus breaks down when it comes to determining precisely what these rights entail, and which rights prevail with they conflict. Furthermore, the vagueness of the Charter’s language leads to interpretation of Charter rights without strict textual guidance, from either the document’s wording or from precedent, to help provide clear answers.
Take, for example, Section 1. It “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This single section contains as many as six ambiguous and debatable concepts, around any of which whole series of court cases could revolve. To take just one, who decides what limits are reasonable, and on what basis? In the famous R v. Oakes case in 1986, the question of the presumption of innocence and reasonable limits on this fundamental right were used to create a blueprint for how the “free and democratic society” clause in Section 1 was to be interpreted. But even with the prescribed Oakes test, there is nothing clear and easily prescribable about a phrase that includes two concepts, free and democratic, which are among the most contested terms in moral and political philosophy.
Who should rule supreme?
When rights come into conflict, our judicial guardians are empowered to decide, as Abella stated in her speech, “which contested values in society should triumph.” Our closest constitutional relatives – the U.K., Australia and New Zealand – do not (yet) give judges the power to overturn legislation. Why? Because parliamentary supremacy is the foundational principle of the British Westminster system on which our political order is based.
Through the notwithstanding clause, the Charter pays lip service to this essential concept, but it is almost never used, largely because the Court Party and its allies have inverted the clause’s nature in the public mind. Rather than being accepted as the (democratically elected) legislature’s last line of defence against judicial usurpation, it is widely perceived as political usurpation of an impartial judiciary. Rather than being recognized as a way to defend democracy and the voting public’s position in the political hierarchy, it is seen as an illegitimate mechanism to sabotage them. In any case, the Charter’s amorphous nature means that judges are going to be asked to rule on abstract questions that often boil down to debates over whose freedom trumps whose equality. These aren’t questions legal texts can answer by themselves.
With such a rich landscape in which to exercise their minds and display their wisdom and beneficence, it’s little wonder that Canada’s judges have largely cast aside judicial restraint. While previous generations of jurists would blanche at the thought of inserting non-existent or imaginary rights into a country’s jurisprudence – especially if that country’s parliament had debated and decided against doing so – Canada’s Supreme Court has done exactly that on numerous occasions.
When it unanimously struck down Canada’s federal prohibition on assisted suicide in 2015, it overturned its own ruling in 1993 upholding the prohibition. Had the Charter or the law changed in those 22 years? Of course not; judges now simply saw fit to write their own preferences into the law – into Canada’s Constitution. Not only is it no longer governed by centuries-old common law, Parliament’s will, or the wording of the Charter (including what is not in it), Canada’s current Supreme Court no longer seems bound even by itself. A living constitution, indeed.
Criticizing judges who read new rights into the Charter is not to suggest the document should be unalterable. The Constitution Act, 1982 sets out a formal amendment formula. It normally requires that an amendment be adopted by the House of Commons, the Senate and two-thirds of provincial legislatures representing at least 50 percent of the national population. If a broad portion of Canadian society decided they wanted to create a right to assisted suicide and to have this enshrined in the Charter, such an amendment could be passed. Unfortunately, Canada’s fractious inter-governmental and constitutional politics have led to amendment paralysis – as the years-long, nationwide battles over the Meech Lake and Charlottetown accords illustrated. Accordingly, those who want to change the Charter gravitate towards judicial reinterpretation. This has proven far faster and easier – although it has gone almost entirely in one direction, advancing the progressive agenda.
Could that direction be changed? The Charter is still relatively young. Millions of Canadians are living through its evolution, so it retains the feeling of a work-in-progress. The American Constitution and Bill of Rights are more than two centuries old. Its authors long ago achieved near-divine status in America’s civil religion. The temporal distance between the American founding and the present day has helped generate a reverence for the document that, in turn, helps protect it (though far from completely) from political and judicial caprice. Over time, such an attitude might develop in Canada as well, but for now the Charter remains in a more juvenile state that invites “figuring out” its meaning, as if there are hidden secrets waiting to be discovered. And Canada’s judiciary has proved only too eager to go prospecting.
The real issue with our courts, then, is not that they are political, it’s that they are for the most part filled with philosophically similar judges, leading to an almost homogeneous court. Emmett Macfarlane, a renowned expert on Canada’s judiciary, has said that, “Law schools in Canada are homogeneously moderate to left of centre…There’s less ideological diversity.” A consequence of this is that the dominant legal theory among Canada’s judicial class, “living tree” constitutionalism, often masquerades as being above ideology. This theory holds that constitutions should change and be reinterpreted with the times. And because most of Canada’s senior judges think similarly, their broad agreement can be presented as representing a sensible, non-ideological approach that all reasonable Canadians can get behind.
Indeed, shortly after the Trinity Western decision, the Supreme Court’s new Chief Justice, Richard Wagner, held an extraordinary press conference in which he explicitly affirmed the living tree theory, saying, “We are able to interpret the Charter along the way, given the evolution of society.” He also implicitly placed the court as a force opposing the populist politics sweeping numerous Western countries, with these remarkable words: “Right now we see, outside Canada, that some of our basic values, fundamental values and moral values, are seriously attacked by other countries or leaders of other countries, who pretend to be democratic.” Canada’s judges, he seemed to imply, stand ready to thwart the will of the people.
Originalism in the United States
Just because this legal philosophy isn’t yet widely contested doesn’t mean it isn’t contestable. The problem with much of Canada’s contemporary judicial climate is not simply the overreach or outcomes, it’s the sloppiness of the underlying reasoning. This lack of rigour is the product of a legal environment in which the living tree is rarely challenged, and homogeneity breeds mediocrity. Only in this environment could you get decisions like the 2015 Saskatchewan Federation of Labour v. Saskatchewan, in which Abella in her own words “gives benediction” to a right to strike. This pompous language seemed to make her equal parts philosopher-queen and high priestess.
Our southern neighbour offers some clues as to how we might go about challenging Canada’s judicial status quo. The 1960s and onwards saw a massive expansion in the power and reach of the U.S. Supreme Court, supported by jurisprudence dominated by “living tree” thinking (which also included introduction of such novel terms as “emanations” from the U.S. Constitution, which was said to have a “penumbra” apparently discernible only to certain judges). The modern American conservative movement arose largely as a response to this. In 1982 the Federalist Society was formed by conservative law students at Yale and Chicago who wanted to challenge liberal orthodoxy at law schools. Its first faculty advisers were the aforementioned Justice Scalia and Robert Bork, a brilliant scholar and jurist whose later vilification by the left blocked his confirmation to the U.S. Supreme Court.
The Federalist Society aimed to nurture and promote originalist legal thought through debates, lectures, and networking opportunities. One need only look at the makeup of America’s highest court today to understand its remarkable success. A judicial revolution has taken place in the United States in recent decades as a generation of originalist legal minds nurtured in the Federalist Society and elsewhere have ascended to numerous state and federal courts, including the Supreme Court itself.
Concurrent with this grassroots movement, an effort was launched at the highest government levels to appoint more originalist judges. President Ronald Reagan’s second Attorney General, Edwin Meese, was a skeptic of the courts’ pervasive liberal activism and its frequent challenging of Reagan’s agenda, and Meese convinced the president that conservatives needed to pay close and enduring attention to the courts. This was how Scalia ended up on the Supreme Court.
Scalia was a brilliant writer and a master of the dissent, which mattered greatly in the climate he found himself in, for in his early days Scalia’s was a lonely voice. But his scathing and insightful critiques often forced progressives and other judges to take notice. This encouraged challenges to conventional liberal orthodoxy. Over time, 8-1 decisions became 7-2, then 6-3, and so on. In addition, later Republican presidents – including both Bushes and now President Trump – have shifted the court in an originalist direction through their appointments.
Today, for the first time, following the bitter battle over the nomination of Brett Kavanaugh, originalists form the court’s majority. Interestingly, this 35-year-long process not only yielded more rigorous originalist jurisprudence, it has forced progressive judges and scholars to reason more moderately and coherently. Today’s U.S. Supreme Court is neither monolithic in its thinking nor predictable along ideological lines – as was demonstrated just this month when Kavanaugh and Chief Justice John Roberts sided with the court’s four liberals in an important ruling on state funding for Planned Parenthood. The rigorousness of the Court’s reasoning has been strengthened by the philosophical diversity of its members. And if courts are going to be the final arbiters of values, Canada’s justices should take note.
A Canadian conservative legal movement?
Appointments alone won’t diversify Canada’s judiciary. Conservative prime minister Stephen Harper had as much power as any of his Liberal predecessors or successor to choose judges, yet he did little to dislodge the Court Party. The larger problem for a Conservative government that wants to change the status quo is that Canada lacks its own theory of originalism and an associated movement that could compete with the living tree monopoly in our legal institutions. There is potential for one to emerge, however.
Originalism, above all, is not simply a theory of interpretation, it is a theory of legitimacy that acknowledges the judiciary’s extraordinary power and seeks a sturdy legal rationale to justify its exercise. Judges wield the closest thing possible in contemporary society to absolute power. The ultimate purpose of the Charter is to tell Canadians, “you don’t get to vote on this one.” But if judges get to override democratic decisions, they need an unassailable theory to justify being able to do this. If judges are going to draw on something outside the law, it needs to be something a large swathe of Canadian society can agree upon, and not simply the “idiosyncrasies of the judicial mind” or, even more crassly, a set of almost entirely left-leaning policy preferences.
Howard Anglin, Executive Director of the Canadian Constitution Foundation and a former deputy chief of staff to prime minister Harper, has thought about this issue at length. A Canadian originalism, he says, “would start to come up with clear limits on the kinds of cases courts would rule on, especially those that go beyond the text and read new rights into the Charter, using the law as a mechanism for social change and policy outcomes.” The courts, Anglin says, “would accept that new rights must be enacted through the same process as the Charter, and courts should steer well clear of social questions and second-guessing public policy unless an express and unambiguous existing constitutional right is being violated.” But even then, there would still need to be a clear place outside the text from which to draw.
As did the U.S. originalists, Anglin suggests looking at what the Canadian framers of our Charter did and did not do. While trying to discern a common original intent in sections of the text may be difficult, there is often clear evidence concerning what the drafters and elected representatives who approved the Charter did not think it would do.
The choice of the limiting phrase “fundamental principles of justice” rather than “due process” – a term that had been used by U.S. courts to invent new substantive rights – is one example demonstrating that the Charter’s framers did not intend to give free rein to activist judges. Due process is a legal principle obliging the state to respect all legal rights given to a person. It creates wide judicial wiggle room for invention of rights. The concept of fundamental principles of justice has a narrower scope.
More evidence of the framers’ intent lies in the fact that their governments did not radically overhaul existing laws before or after the Charter was enacted. It can be inferred from this absence of legislative activism that lawmakers did not, in fact, intend for the Charter to radically change Canada’s laws and practices. That became the – arguably illegitimate – work of post-Charter judges.
Some conservatives have complained that the Harper government’s greatest failure was its refusal or inability to remake the judiciary. Harper appointed six of the nine justices who currently sit on the Supreme Court – without a discernible shift in judicial direction. But Harper did the best he could with what he had to work with. In the U.S. the Federalist Society now offers an unparalleled roster of qualified, erudite, and credible originalist judges from which sympathetic presidents can choose. Harper had nothing like this available to him. He did score some rare victories, such as the appointment of Mr. Justice Russell Brown from the Alberta Court of Appeal, who authored the scathing dissent in Trinity Western. There are undoubtedly some dissenters from the orthodoxy dominating the courts and law faculties, but the talent pool was nowhere near deep enough for Harper to materially shift the activist bias in Canada’s judiciary.
Canada’s court system and universities do have some lonely but impressive legal voices. They include Grégoire Webber at Queen’s Law, and Grant Huscroft and Bradley Miller, who both sit on the Ontario Court of Appeal. Works like Webber’s The Negotiable Constitution and a collection of essays edited by Huscroft and Miller in The Challenge of Originalism: Theories of Constitutional Interpretation, offer a glimpse into what this movement could become. But this is just the beginning, and the project of building a Canadian originalism could take decades, just as it did in the U.S.
Where to go from here
We as Canadians are heirs to a glorious tradition of parliamentary government. The Charter was in some ways an artificial imposition onto this order. It prioritizes abstract rights, something that the great philosopher and statesman Edmund Burke warned against. Burke saw abstract rights as dangerous because they led to theoretical schemes of politics that often demanded the destruction of the old and the creation of the new, which too often comes hand-in-hand with bloodshed. But even if the Charter represents exactly what Burke cautioned against, for better or worse it has become part of Canada’s political culture and history, and the vast majority of Canadians are proud or supportive of it. For skeptics of the way it has transformed our politics, we must accept it is part of us now and attempting to dismantle it would be not only near-impossible but potentially destabilizing and destructive.
So we must learn to work within its boundaries. This means abandoning the notion that courts can be restricted to “mere application” of the law. That debate has been lost. Our gripe should no longer be that this happened, but that a philosophically homogeneous group of people have a near-monopoly on deciding cases. There’s no changing the minds of people like Justice Abella. But we could, potentially, nurture some alternative voices and promote their ascent through the legal community and onto our courts. Our American neighbours have proven it’s possible to shift the judicial culture, though clearly not overnight. It’s a project Canadian conservatives must undertake, or resign themselves to perpetual rule by self-regarding philosopher-kings and queens who no longer even attempt to masquerade as mere judges.
Benjamin L. Woodfinden is a Doctoral student in Political Science at McGill University in Montréal. He has been published in The American Conservative, Maclean’s, Real Clear Policy, and the Ottawa Citizen.
