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With the recent decision handed down against the claimant in Christie, there has been discussion here at The Court concerning how far legislation must go in creating barriers to courts before the unwritten constitutional principle of the ‘rule of law’ is invoked to strike down such legislation. Though on the one hand there is a clear sentiment that the rights guaranteed by the Constitution are meaningless if an individual can’t have them enforced by a court, there is also just as poignant a concern that it is beyond a judge’s scope of power to decide how public monies are spent in requiring certain levels of legal aid. While Christie seems to limit the judicial legitimacy of decisions based on unwritten constitutional principles, I’m reminded of a more general discussion surrounding this question of judicial legitimacy with regards to the written constitution. Back in February of this year, at a debate at McGill University, Justice Binnie of the SCC faced off against Justice Scalia of the US Supreme Court, each championing their own respective perspectives on Constitutional interpretation. This debate can be streamed from CPAC here.
On one side, Justice Binnie espoused support for the measured judicial activism inherent within the ‘living tree’ approach that is entrenched within Canadian Constitutional jurisprudence, i.e., that the Constitution is to take on new meaning as society evolves and changes. In opposition, Justice Scalia argued in favor of an approach that limits meaning to the original meaning of the text, the reason being that judges are in no better position than the proverbial Joe Six-Pack to make value-laden moral judgments of certain behaviors.
On May 17th, I had the great fortune of being able to attend Justice Binnie’s address to the Ontario Bar Association, where he spoke about those topics and that very experience.
In answering the question of “Where do judges get their authority to shape and contour the Constitution?”, Justice Binnie had two responses.
First, he refuted the typical criticism that the process of Constitutional amendment should instead be used by saying that its use is unrealistic due to the difficulty and delay with which that process requires. He addressed this at 13:04 of the debate, saying
when it comes to the division of powers and amending the Charter of Rights, it is difficult to see how the amending formula can work…The notion that somehow the answer is to have the people to come forward with amendments to make the Constitution conform to their wishes is, in Canada, not realistic. Why is it not realistic? Well, as soon as you propose an idea in Canada, everybody jumps up with their own complaints as to what amendments they would like to see
Second, he stated that there’s no other source of keeping our institutions in check, and that during the formation of the Charter, that “there was an acknowledgment that this is what judges ought to do.” He stated that all the way through the committee reports, there is a refrain that being unelected is an advantage, presumably to the extent that judges are divorced from the requirements of mainstream politics, they are better able to protect minority rights. Moreover, he stated many historical examples (such as the “Persons” case, cases dealing with the evolution of the division of powers, and the recognition that the power of disallowance was a dead letter) where a principle of interpretation allowing for evolution of rights has served Canadians well.
However, with particular attention paid to the moral questions (such as abortion, same-sex marriage, and euthanasia) that Justice Scalia was concerned about, Justice Binnie had no better response than merely to state (the context of the quote is in reference to the “Persons” case, but it seemingly applies more broadly), at 24:35 of the debate,
Well, where do the judges get the special insight and wisdom to bring about the evolution in the understanding of the Constitution to allow it to move with the times? I say simply that the judges are as much a part of this society as anybody else, and at some point they too, have to recognize a dead letter when they see one.
Presumably, this same reasoning extends to the extension of Constitutional rights as well.
It seems to me that despite the constraints on Canadian judges that Justice Binnie describes, (such as the meaning of the written text, judicial precedent, and criticisms by media, public, politicians, the bar, and other judges) and his statement that “judges do not have any mandates as social engineers” (at 25:33 of the debate), that the core of Justice Scalia’s question of the authority of judges to make moral decisions remains unanswered.
Nevertheless, from my view, this alone does not seem like a sufficient reason to rely merely on the original meaning of the Constitutional text as Justice Scalia proposes. Although judges may not have any special ability to discern moral questions apart from being “a part of this society as anybody else,” it would seem that historically and pragmatically, they are in the best position to do so. And although there are no formal accountability processes in place (such as elections) for the decisions judges make, the normative pressures from the various critics that Justice Binnie mentioned (which act as incentives for judges to show restraint), combined with the ultimate possibility of the use of the Notwithstanding Clause, seem so far to be sufficient in holding judges accountable to the public.
3 Comments
The authority of judges to make what Justice Scalia might describe as "moral" decisions stems from the Constitution itself. For example, the Constitution creates a right for people to express themselves freely, subject only to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". It is impossible to adjudicate that right without making a series of potentially "moral" decisions: what is "expression"? What limit on the right is "reasonable"? When is it "demonstrably justified"? What is a "free and democratic society"?
Things go off the rails, however, where judges take it upon themselves to start making "moral" decisions in the absence of a clear authority to do so (see, e.g., the trial court and the majority of the Court of Appeal in Christie). That approach, in addition to being utterly anti-democratic, tends to obscure the fact that judges, in many contexts, are required by the Constitution to make "moral" decisions, and that the "moral" decisions rendered by them in those contexts are completely legitimate.
Mike,
I think I agree that the authority upon which the trial court and BC Court of Appeal grounded their judgment, i.e. the unwritten principles, is undemocratic. They're very ephemeral, and very open to abuse. But perhaps that is simply due to their relative infancy and lack of elaboration. I wasn't old enough to remember the early 80s, but from the remarks of professors, I gather that the Charter used to be very much the same.
But aside from that, I think that it is wrong to say that there was no clear authority at the trial court and Court of Appeal. They were subordinate courts, working with the authoritative pronouncements of the SCC regarding unwritten principles. The extremely bizarre judgment in the BCGEU also supported their reasoning.
And, finally, I think we should remember that judges do not take it upon themselves to do anything (except for the crazy judge that started the whole BCGEU case!) They're faced with Mr. Christie and his reasonable demands for access to justice on the one hand, and doing nothing on the other. There's weight on both sides, and the judges have to do their best to make the right choice.
The discussion of originalism in Canada is really primitive in comparison with the US. A good place to start is Jack Balkin's post on the distinction between the "original meaning" of a constitutional phrase ("sense" in Fregean jargon) and "original expected application" ("reference"). We need not decide cases as Jean Chretien or Barry Strayer would have when they were twenty five years younger, but the Court ought to take into account what the parties thought the words meant.
In my view, the Court arrogantly refused to do this in the Motor Vehicle Act Reference, leading to a continuing problem with its legitimacy.