The Charter: Its Achievements and its Detractors
When the Charter was adopted, the principal fear among legal scholars was that the supremacy of parliament was so firmly embedded in our legal system, that the courts would dilute the Charter so as to make it marginal, much as they had done with the Bill of Rights. This did not happen, and the Charter became a powerful tool for justice. Our criminal law, language law and administrative law became radically different from what they had been. The most important effects are surely the attainment of linguistic peace, the acceptance of homosexuality as a normal form of human sexual expression, the enshrinement of both a basic right to associate with others and an equally basic freedom from unwelcome association, the recognition of the fundamental nature of the right to a hearing and of the fact that the undoubted need to discover and prosecute criminals must be tempered by the demands of fairness and the imperative of the protection of privacy. By any standard the Charter has proved an extraordinary success.
Yet the Charter has never been weaker and more subject to unfair criticism than today. This criticism has often taken the form of a populist appeal to ''majority rule". Judges are presented as unelected and therefore less suited than parliamentarians for making major decisions. This type of populism ignores entirely the weakness of each member of parliament in a system dominated by political parties and powerful lobbies.
It is unfortunate that many Canadians swallow the populist line even though polls indicate that they generally agree with the court decisions. An examination of the American experience can help us understand this.
Cover of a book by Julius H. Grey entitled Immigration Law in Canada, 1984 Julius H. Grey -- Toronto : Butterworths, 1984. -- xxv, 237 p. ; 24 cm. -- ISBN 0409834505. -- Cover © LexisNexis Canada Inc. Reproduced with the permission of LexisNexis Canada Inc.
Cover of a book entitled Contestation transnationale, diversité et citoyenneté dans l'espace québécois, 2004 sous la direction de Micheline Labelle et François Rocher, avec la collaboration de Ann-Marie Field -- Sainte-Foy : Presses de l'Université du Québec, 2004. -- x, 223 p. ; 23 cm. -- ISBN 2760513173. -- Couverture © Presses de l'Université du Québec. Reproduced with the permission of les Presses de l'Université du Québec.
It has become a dogma of modern American conservatism that judicial activism is nefarious for democracy. In fact, the naming of judges who believe in ''restraint'' has become a Republican mantra. Yet when one seeks to discover what the courts have done to provoke this reaction one finds only two major matters, the integration of Afro-Americans and the facilitation of abortion. This illustrates a remarkable paradox. The American public is ready to prevent future judicial innovations, yet it appears to support the judiciary's past successes. When we consider that no political party could have easily achieved integration or liberalized abortion because this would have offended powerful lobbies, the contradictory nature of the opposition to judicial innovation becomes obvious. No one questions integration and the anti-abortion lobby is clearly a minority but today's politicians have made similar developments in the future highly unlikely.
Political cartoon by Roy Carless entitled "On the Horn of Dilemma," depicting Prime Minister Brian Mulroney holding a Supreme Court Decision document while hanging from the horn of a rhinoceros labelled "Abortion Issue," circa 1989
The Canadian examples, though less dramatic are similar. The courts have not overstepped their proper bounds. The criminal law which has become more fair, still operates efficiently and there is, in fact, less crime than before. Concepts such as obscenity and hate have been circumscribed but the courts left it to the legislator to decide whether they should remain. Quebec's right to protect French has been
strongly reaffirmed, just as the rights of Canada's linguistic minorities, both English and French, have been enhanced. Relative freedom of abortion has been achieved. Contrary to what many think, the courts did not make gay marriage an absolute constitutional requirement, only equality for homosexuals. In fact they displayed considerable restraint.
There is no doubt that most Canadians agree with all of these results despite scattered opposition to abortion. Yet many citizens are seduced by the notion that we have suffered from excessive judicial meddling.
Part of this may be a normal swing. Opinions and attitudes vary from epoch to epoch and so we are living in more cautious times than the 1980s and 1990s. However, much of the blame is due to the fact that Canadians do not know just how moderate and main-stream the courts' decisions have been.
Of course it is possible for courts to go too far. History has illustrated that judicial decisions that stray beyond what a society can tolerate never take root. For instance, can anyone imagine a successful plea for gay rights fifty years ago? The fact that there are limits should not however lead us to conclude that the courts should abdicate their proper role -- to protect the individual from hostile majorities and to make certain that the body politic is not hijacked by powerful interests and lobbies. It is to be hoped that in the coming years the courts will withstand populist pressure and continue to use the Charter to protect the individual and advance social justice.
Julius H. Grey teaches and practises law in Montréal.
"Julius Grey: In Praise of Freedom." Tolerance.ca.