Poli 221 Lecture 8 Readings Notes:
Hogg: The Charter Revolution: Is it Undemocratic?
The Charter Revolution:
• There has been a charter revolution —> people use judicial review along with the charter to
get accomplish policy
• Charter has been given a much more expansive interpretation than the bill of rights. —>
especially in criminal justice cases, the rights from the charter have been interpreted more
broadly than their equivalents in the US.
• Study published in 1997 showed that 65 cases in which the courts struct down or directly
amended federal or provincial law under the charter since its adoption in 1982 —> there are
many more cases in which the actions of police officers or government officials have been
annulled… This has lead to a “charter revolution”
The Court Party:
• Court Party encompasses a cluster of interest groups promoting rights, and they point out that
these groups have adopted charter revolution by looking to the ours to advance their policy
objectives —> these groups such as: feminists, gays, lesbians, poverty activists, libertarians
promptings freedoms (expression, religion, fairness in the criminal justice system)
• These groups have succeeded in persuading the court to adopt unpopular left wing causes
that could not survive the public scrutiny that is characteristic of democratic decision making.
Policy objectives of these groups are not always consistent with each other, sometimes find
themselves on opposing sides.
• What members of court party have in common is that they have an interest in supporting the
power of judicial review under the charter —> it allows them to attain policy objectives that are
not attainable in elected legislatures.
• Since adoption of the charter, corporations have used charter litigation to challenge a variety
of regulatory laws —> Sunday shopping, advertising, provisions of competition
• Trade unions are also arguably members of court parties, they have traditionally turned to the
courts to accomplish objectives that cannot be accomplished elsewhere.
• Court party objectives do not really pursue issues that serve postmaterialist issues, or rather
the economic self-interest of their members but rather general issues such as the promotion of
freedom of expression, religion, education for language minorities, equality for women, gay
and lesbian people and racial minorities, and criminal law reform. —> not business issues.
• Phenomenon of a court party is not a new one
Democracy and Civil Liberties:
• Morton and Knopff are both opposed to the court party and the charter revolution, they
describe it as fundamentally undemocratic, in the serious sense of eroding the habits and
temperament of representative democracy.
• Public policies should not be set by courts, not by representative majorities and political
discourse becomes inflated and intolerant when it is framed in the language of rights.
Court Parties point to the charter and use it as it guarantees certain liberties and securities,
fair trial, minority language rights and equality.
• Increased influence of courts and lawyers is what troubles these political scientists. • The discrimination on the basis of sexual orientation, race, national origin and other improper
bases has not been eliminated from our legal system.
• The idea that there are rights that should not be subject to legislative repeal simply by an
appeal to the general welfare is widely accepted as consistent with or even essential to a
• It is an impoverished definition of democracy that makes no provision for a charter of rights or
for judicial review.
• Compatibility of the charter with democracy is reinforced by the notion of judicial review as a
‘dialogue’ between supreme court and the legislatures.
Two defining features of the charter that differ from the the American Bill of Rights: section 1
and section 33 —>
• Section 1: permits a charter right to be limited by the competent legislative body provided a
limitation “can be demonstrably justified in a free and democratic society.”
• Section 33: An indigenous Canadian invention, permits a charter right to be overridden by
the competent legislative body, provided that the legislation explicitly announces that it is to
operate notwithstanding the charter right.
• The competent legislative body did not usually let matters rest with the decision of the court
—> two cases where courts ruling was effectively revised by legislature once by invoking s.1
and another time using s.33
If charter decisions are ultimately renewable by elected legislative bodies, using the
distinctively Canadian s.1 or s.33, then it becomes much less significant whether the decisions
have been achieved through the efforts of the court party or have been made in disregard of
• It is politically difficult to directly reverse a decision of the Supreme Court of Canada on an
• The power to reverse a judicial ruling has been in fact been exercised twice in Canada:
• National Assembly of Quebec —> reversed the Ford decision and restored its french only
law for commercial signs
• Parliament of Canada —> reversed the Daviault decision and restored the rule that
intoxication is no defence to criminal offences of general intent.
• However, in most charter cases, there is no political impulse to directly reverse the judicial
decision. The attitude of the government whose law was struck down is not one of hostility
towards the court, rather it is an issue for government who seeks to craft a new law that
accommodates the court’s concerns while preserving legislative objectives.
• Important point of the idea of dialogue is that judicial decisions striking down laws are not
necessarily the last word on the issue, and are not usually the last word on the issue. The
legislative process Is influenced by but is not stopped in its tracks by a charter decision.
Ultimate outcome is normally up to the legislative body.
• Yes, there has been a charter revolution, giving a new role to the courts in enforcing a body of
guaranteed rights, which are expressed in such vague language that the courts have a great
deal of choice in selecting the “correct” interpretation. • Court parties consist of groups who have accommodated to the new reality and seek to
achieve their policy goals in the courts.
• Because of s.1 and s.33 of the charter, the legislature usually has a good deal of discretion as
to the appropriate response to a charter decision and, bearing in mind public opinion will
normally want to replace a law that has been struck down with one that accomplishes the
public policy objective but is more inclusive of minorities and less intrusive of guaranteed
• The claim that judicial review under the charter of rights and freedoms is ‘undemocratic’
cannot be sustained.
McLachlin: Courts, Legislatures and Executives in the Post-Charter Era
• Constitutional, rights based democracy is swiftly becoming the international norm, if this has
not already happened..
• Parliament and legislatures have always been constrained by basic constitutional principles,
including fundamental rights —> rise in courts being interpreters of constitution not a new
thing… Courts have had the task of deciding whether laws challenged as going beyond the
powers of the legislature that enacted them were valid or not.
• Without a written bill of rights, courts still required legislatures to conform to the basic
principles of democratic government and equality. Several examples of this…
• Over 50 years ago, the courts used the process of interpretation to recognize equality rights
• Many years ago, women could not sit as judges as they lacked the “privilege” to do so. —>
revised because a woman found the law against women judges was unjust and she sought
change via the courts. (This was in the early 1900s) The matter was finally settled with the
JCPC who found that women were to be included as a “persons”
• Via the interpretation of the constitution, two important things can occur:
• The law may be altered, and fundamentally reversed (law of women not being allowed to be
• Vast new rights can be accorded to individuals lacking in these rights (women being allowed
to be judges)
• —> this sounds a lot like what happens with the charter today
• Another example of pre-charter courts conforming to the fundamental principles of justice is
the striking down of offending legislation..
• 1938 Alberta Reference —> Supreme court of Canada struck the bill which restricted the
press’ criticism of the government’s economic policies.
• Canadians had rights long before the charter and the courts served as guardians of those
rights. —> The charter essentially accepted this role then entrenched the role of judges as
interpreters and guardians of the rights it guaranteed.
“You cannot entrench rights in the constitution without some agency to monitor compliance.
The judiciary was the obvious choice.”
• In one sense, charter is old news. In the other, it has changed things profoundly
• Micro Level—> Forced us to update our laws of criminal evidence and procedure, required
governments to rest their citizens equally, without discrimination (regardless of race, religion,
sex, age). Forced examination of electoral practices, required us to consider again where we should draw the line between an individual’s rights of free expression and the need to
protect the community from harmful expression.
• Macro Level —> Charter has changed the way Canadians think and act about their rights.
Their rights belong to them, these rights are a precious part of social inheritance and must
be exercised and protected by all canadian citizens.
• Charter has changed Canadian society by increasing the profile of the judicial branch of
government —> before the charter, judges were maing boundaries between rights, changing
law to reflect certain conceptions of rights and occasionally striking down laws that violated
fundamental rights. Because of charter, peoples rights have been put up front and centre. It
has become easier to challenge a law on the grounds that it infringes on a fundamental right
when you have a document that proclaims your entitlement to such rights.
Charter has increasing the challenged to laws on the basis of rights and this, incidentally
increased the profile of courts called upon to resolve these issues.
Has The Charter Put too Much Power in the hands of Judges?
• Certain arguments against judges:
• Judges have used the charter to effect a giant power grab
• No evidence that judges are seeking to entrench their power at the onset of the charter.
• One must not forget that legislation via the courts can be struck down by legislatures via s.1
and s.33 of the charter to override judicial decisions.
• Parliament and the legislatures can override judicial decisions on the chatter if the
considered sentiments of the community make it politically feasible to do so. —> Reject
argument judges of Canada have used the charter to effect a power grab and are running
the country via judicial rulings.
• Unelected judges are running the country
• Sure, judges are unelected, but there are many conflicts of interest and other problems with
elected judge systems
• Judges are too activist
• Judges are said to be too eager to overturn laws and too ready to strike statues down, to
rewrite laws enacted by parliament and the legislatures as well… However, it is suggested
that the supreme court of Canada is far from being activist and is in fact inclined to be
judicially conservative and deferential to the elected arms of government.
In addition, its hard to find examples of the supreme court “rewriting” laws.
• Judicial activism is not changing the law but rather changing it too much. Radical changes to
the law may be viewed as activist by definition.
• Are all “radical” changes “bad” ? —> Women being allowed to be judges was a radical
change but in no way considered “bad”
• The term activist also may just refer to a person who does not necessarily fit into another’s
views politically and therefore becomes a radical and an activist.
Judicial activism can be viewed as a proxy for decisions the critic does not like and has to do
wight he fear that judges will depart from settled law and take advantage that parliament or
legislatures are the only bodies that can strike down their rulings and legislations.
The first time a charter pronouncement is made that seems to change the law it may strike
many as “activist”
• “Palm Tree Justice” —> justice rooted in legal principle and appropriate respect for the
constitutional role of parliament and the legislatures. Evokes image of colonial magistrate seated under his judicial palm tree, meting out whatever decisions happened to seem right to
him int he particular cases at hand.
• Judges should be appropriately respectful of the role of parliament and the legislatures and
the difficulty of their task.
• “Appropriate respect” —> presupposes an understanding of the role of the legislative branch
of govt as the elected representative of the people to enact laws that reflect the will and
interests of all the people.
• Where laws unjustifiably violate constitutional rights, it is the clear duty of the courts to declare
that the offending law is to that extent null and void under s.52 of the charter.
• The role of the courts is the vital task of hearing constitutional claims brought by individuals,
identifying unconstitutional legislative acts where such can be demonstrated and applying the
charter we have all agreed upon.
Russel: The Charter and Canadian Democracy @ 25
• The charter was bound to involve the judiciary in making important decisions on contentious
issues of public policy —> The danger is not that non-elected judges will impose their will on a
democratic majority, but that questions of social and political justice will be transformed into
technical legal issues and citizens who are not judges or lawyers will have to take
responsibility for working out acceptable resolutions on these issues that divide them.
Has the charter affected the quality of Canadian democracy in way he hoped for and other
was that were not anticipated in the last 25 years?
The Charter and the Sinews of Canadian Democracy:
• “sinews of democracy” —> the capacity of our Canadian body politic to debate and resolve
over time divisive normative issues that arise in our political life.
• Charter has dealt with big, controversial issues of social and political justice that have arose
since its establishment. (Sunday closing, abortion, euthanasia, rights of gays and lesbian,
rights of linguistic and religious minorities ect..)
• The decisions of the courts have undoubtedly influenced public policy on these issues. —> a
judicial decision on the charter has been a crucial factor in bringing a particular policy
• Court decisions, even when they have a decisive impact on certain matters, generally do not
close off political debate and discussion. —> abortion is still a highly contested subject both
politically and socially. In regards to mandatory retirement, the losing side in the supreme
court carried on its struggle, totally unpersuaded by the reasoning of the court’s majority and
with the help of changing demographics, labour shortages, and political lobbying, eventually
began to get rid of mandatory retirement province by province.
• Some cases rule that the court should not deal with difficult moral issues until public opinion
on said issue is better formed.
• Same sex marriage also is an issue where charter decisions created debate among
parliament, but not among public.
• In generating litigation leading to decisions that are in line with the views of the political
correctness crowd, the charter may have added an ounce or two to their moral arrogance.
• Russel concludes saying, despite his fears, the sinews of Canadian democracy have not been
significantly weakened by the Charter. The False Spectre of Activism:
• Most widespread democratic concern regarding the charter, before and after adoption, was
the spectre of unelected judges making decisions about important matters of public policy.
Once the charter became law and the Supreme Court of Canada began to render decisions on
it, there was a tremendous outburst of concern about the antidemocratic implications of this
expansion of judicial power.
• Judicial activism was seen as a threat to Canadian democracy —> did the charter give judges
too much power?
• Russel believes that due to the ‘notwithstanding’ clause the charter had validity and would
serve as a democratic safety valve, ensuring that neither the judiciary nor parliamentarians
would have the last word on difficult decisions relating to the metes and bounds of
constitutionally protected rights.
• The availability of the legislative override meant that elected government accepts
responsibility for leaving in tact the expansion of equality called for by the supreme court.
Russel believes override should only be used in rare situations in which a supreme court
decision, especially one rendered by a badly divided court and based on a very contentious
interpretation of the Charter, has struck down legislation that is clearly valued by a large
• The Charter has lots of popularity publicly as it is perceived to aid Canadian citizens and give
them fundamental rights they otherwise would not have explained explicitly.
• Being in favour of the charter does not equate being in favour of a robust and liberal
application of the judiciary. —> There are often instances where the public does not support
the court’s position on certain issues. However, there are many situations and contexts,
especially regarding equality issues, in which public opinion was in line with positions taken by
the supreme court.
• Research has show that public support for the judiciary remains high and is diffuse even when
there is not a majority support for a particular decision. —> The public unlike politicians, trusts
courts more than legislatures to make decisi