A Judicious Celebration

Editors’ Note: This essay is part of a symposium, Reflecting on Canada Day.

The tendency of a common and easy resort to this great function [of strong judicial review], now lamentably too common, is to dwarf the political capacity of the people, and to deaden its sense of moral responsibility. It is no light thing to do.

James Bradley Thayer

On Canada Day let this native born and educated Canadian, now a law professor in Australia, celebrate by voicing a decidedly minority outlook. My claim is one that you will barely ever hear uttered in Canada. It is that the 1982 Canadian Charter of Rights and Freedoms, Canada’s constitutionalized bill of rights that allows unelected judges to strike down and invalidate laws passed by the democratically elected legislatures, was a mistake. It has significantly empowered the lawyerly caste from which the top judges are chosen. It has pushed social and political disputes into the judicial arena, where these judges either decide the matter or they set out “acceptable” parameters within which the issue can be decided. It has judicialized and thereby enervated politics. And it has deadened the voters’ responsibility for deciding those debatable social policy issues over which nice, smart, reasonable people—ones with whom you’d be happy to have a beer—disagree. Now, those decisions are made by committees of ex-lawyers who have no greater moral or political perspicacity than plumbers, teachers, or other citizens do.

Remember that a bill of rights sets out a list of what amounts to moral entitlements in the language of rights. These enumerated rights are sold up in the Olympian heights of absolutist-sounding, vague and amorphous moral abstractions. Who, for instance, would put his or her hand up as being against the right to free speech? But these instruments in fact operate down in the quagmire of day-to-day social policy line-drawing, where neither side is plausibly categorised as unreasonable or rights-denying or evil. The free speech cases that come before the top court have to do with things like restrictions on tobacco advertising (the Supreme Court of Canada flip-flopped on that), or campaign finance rules, or hate speech. The same goes for all the other enumerated rights cases. Almost always, the judges themselves disagree, just as the legislators did. And always and everywhere, the way the top judges resolve their disputes is by voting. Five votes beat four, regardless of the moral insights, persuasiveness, allure, or number of references to J.S. Mill in the dissenting judgments. It is a purely majoritarian process, the only difference in the decision-making compared to that by the legislature being the rather circumscribed extent of the Supreme Court franchise.

Way back when I was at law school in Canada and the Charter’s adoption was being debated, we voters were promised it would overwhelmingly just confirm rights that already existed; it would not be transformative. And of course there is no other possible way to try to sell an instrument that has the potential to take all sorts of matters off the democratic table. In a long-established, successful democracy like Canada, you have to promise this new bill of rights will not transfer the main focus of power over to the unelected judges and move the country towards juristocracy. But as some of us back then feared and predicted, the Charter has been transformative. The list of issues over which Canada’s top judges has had the last word, gainsaying the elected branches, is extensive. Think euthanasia (effectively renamed by the court as “medical assistance in death”). Think prisoner voting. Think (in serpentine and indirect fashion) same-sex marriage. Think the treatment of those claiming to be refugees. Think prostitution. The list goes on and on and on.

Inevitably, then, much has been pushed down the path of judicial resolution. And down that path, as many Canadians will quietly concede, it becomes almost illegitimate to discuss issues in terms of majoritarian politics and voting, with elected politicians being held accountable for the choices they make. Instead, these issues are transmogrified into ones of fundamental rights. Once the unelected judges declare what your “rights” are, debate seems out of the question, even if the particular case were decided by five judicial votes to four, so that had one judge changed his or her mind your fundamental right would have been the opposite of what it happened to be. Even then, a sense of “how dare you discuss this in the political forum” attaches to the newly declared right.

To my mind, as a rather ardent fan of democratic decision-making, that is a pretty big loss for society. Moreover, it is a loss far more evident in Canada (where this strong, rights-centric judicial review is only four decades old) than it is in the United States (where voters and citizens have lived with political judges long enough to be far more sceptical of their rights-declaring infallibility).

In Australia, with no national bill of rights at all, there is more scope to speak your mind than there is in Canada. But you’d be hard pressed to find one Canadian in a thousand who knew or believed that.

Fans of juristocracy and of a very potent Charter might reply that this is the fault of the politicians. They, after all, have a notwithstanding or over-ride clause that covers many of the enumerated rights. “Use it,” challenge these Charter supporters in the face of claims like mine. Alas, my view is that such charges are often made disingenuously by rather smug members of the legal fraternity who would be horrified and outraged were the politicians ever to show any courage and resolve and stand up to the judiciary.

Moreover, it is not simply a question of the politicians being weak—though weak many of them are—it is also a question of institutional incentives. Bring in a constitutionalized bill of rights like Canada’s Charter and you also bring in big—nay, huge—incentives for the politicians and legal drafters to follow the path laid down by the judges. Anticipating judicial resistance, the elected politicians will think, “Unless we expend significant political capital, it is easier to play along.” Once the judges make up some test or other under the Charter, it is that test that thenceforth governs all attempts to deal with whatever the problem was. The politicians are forced to see the issue through the lens provided by the judges. James Thayer’s point about the moral responsibility of the voters for their own laws being deadened is spot on. And worth lamenting.

Another common misapprehension is that, but for the Charter, the rights Canadians enjoy would not have changed these past 40 odd years. They would have been cast in an aspic-like mould of unvarying solidity. Social reform, in other words, would have been blunted and notions of the rights to be respected would have been frozen in time. But this is belied by Canadian history before 1982 and just as much by the social reform that has undeniably taken place in New Zealand (the world’s most evident parliamentary-sovereignty jurisdiction, though perhaps post-Brexit Britain will rejoin that club) and in Australia (where there is no national bill of rights of any sort). In both those latter jurisdictions, social reform and the scope of coverage of rights has altered and expanded these past four decades. It is just that the changes and reforms (like same-sex marriage and the rest) have been driven by the elected parliaments, not by the lawyerly caste and top judges via test cases and big-ticket judicial decisions.

Here’s something I tell students when lecturing in my native Canada. In Australia, with no national bill of rights at all, there is more scope to speak your mind than there is in Canada. But you’d be hard pressed to find one Canadian in a thousand who knew or believed that. Ditto my claim that when you buy a bill of rights today you overwhelmingly are just buying the druthers of the top judges, filtered of course through proportionality-type analysis and other Jesuitical lenses.

Let me finish with the words of another American legal academic, Lon Fuller, who wrote one of the best-known law review articles in the English language, “The Case of the Speluncean Explorers,” a short little mock hypothetical about some cave explorers trapped underground who have to resort to cannibalism. Fuller gives five mock hypothetical judgments that involve what to do when the law points one way and morality another, and that brings into play the relations between the branches of government in a democracy. Fuller’s pretend Justice Keen comments that there is “a certain moral value [in] bringing home to the people their own responsibilities toward the law that is ultimately their creation, and by reminding them that there is no principle of personal grace that can relieve the mistakes of their representatives.” That is Thayer’s point reworked. Alas, few Canadians seem to agree. I wish it were otherwise on this Canada Day.