A series of recent Supreme Court cases have ruled against the Canadian government. The rejection of their chosen appointee to the Court, Marc Nadon, on constitutional grounds has angered the government in Ottawa. Rumours and allegations of interference by the Chief Justice, Beverely McLachlin, have swirled over the last week. Ultimately, the Conservatives do not like that an unelected judiciary can supersede the democratically elected Canadian government. The place of the Supreme Court in Canada gives it constitutional authority and stems directly from the 1982 Constitution Act. Its section 52 gave the Supreme Court power to strike down legislation that did not align with the new Canadian constitution. To better understand the position of today's government, today we briefly examine how judiciary authority became supreme in Canada.
One of the most important characteristics of the British parliamentary system, which forms the basis of Canada's political framework, was the that no parliament can bind the actions of future parliaments. Any legislation passed by the government could be undone by a future government. In this way, laws would reflect modern society and not be bound to past traditions. It's also why a series of written rules, like a charter or constitution, was viewed cautiously. Those rules would bind all future governments and could overturn unacceptable legislation.
The issue of a constitutionally entrenched bill of rights was first raised in the Cabinet of John Diefenbaker. As Jordan Birenbaum explores in greater detail, Diefenbaker's desire to enact a Canadian Bill of Rights in 1959 (the 10th anniversary of the United Nations Declaration of Human Rights) was masterminded by Assistant Deputy Minister of the Department of Justice, Elmer A. Driedger. After rounds of revisions, the Bill of Rights was passed as parliamentary legislation because it was believed by Diefenbaker and Driedger that civil liberties were primarily under federal jurisdiction and (correctly) that it was impossible to entrench the rights in the constitution without some sort of amendment formula.
When Lester Pearson became Prime Minister in 1962, he had spent several years of criticizing Diefenbaker's Bill of Rights as being too weak since it was only a piece of legislation. He turned to the alternative solution of a constitutionally-entrenched charter. The origins of the Liberal policy towards constitutional reform can be traced to 1962 and a memo written by an economic advisor to Prime Minister Lester Pearson, Maurice Lamontagne. As Graham Fraser has noted, Lamontagne wrote a memo on solutions to the growing problem of Quebec nationalism and the challenge it posed to the Canadian state. Lamontagne advised Pearson to patriate the Constitution, draft a charter that included human rights, create a national flag and anthem, and entrench bilingualism in federal institutions. Most Canadians today recognize these policies, which is a testament to their influence on the next two decades of Liberal policy.
It was amidst the turbulent debates over the future and nature of Canadian federalism that a not-so-young Pierre Trudeau entered the fray. Trudeau had spent much of the last decade and a half advocating for the rights of French Canadians persecuted by the regime of Quebec Premier Maurice Duplessis. He made a name for himself as a defender of workers and unions, as well as a fierce proponent of provincial autonomy against the post-war centralization in Ottawa. As provincial autonomy became a synonym for unrestrained provincial nationalism in Quebec after the Quiet Revolution, he easily changed positions and joined the Cabinet of Lester Pearson as Minister of Justice in 1967. Inward-looking nationalism, he believed, would not solve the problems Quebec faced within the federation of Canadian provinces.
The solution that Trudeau envisioned as much the same as Maurice Lamontagne: a constitutionally-entrenched charter of rights. Trudeau's goal was two-fold. One, constitutional reform was a way to “solve” the “French Canadian problem.” He could ensure language rights for French-speaking Canadians that could not be tampered with by provincial governments, as they had been in New Brunswick, Manitoba and Ontario in the late 19th and early 20th centuries. Two, he could protect individual human rights and freedoms from the government. The individual should be protected from too much government control. “A Constitution of free men must be free from bias,” he wrote in February of 1965, “a human being in the privacy of his own mind has the exclusive authority to choose his own scale of values.” Or, in 1969 as Prime Minister, he wrote that “to enshrine a right in a constitutional charter is to make an important judgment, to give to the right of the individual a higher order of value than the right of government to infringe upon it.” Trudeau wanted to see power transferred from the government to the individual. With a written constitution, the individual could levy his rights and freedom and use the courts to defend against government encroachment, as opposed to relying on the state's good will.
Trudeau's position would be the one that eventually won the day. When he patriated the constitution and enacted the Constitution Act in 1982, it included a Charter of Rights and Freedoms and a section confirming the Supreme Court's power. The court could decide whether or not government legislation followed the terms of the new constitution. Its judges, though unelected, were charged with defending the rights and freedoms of Canadians. To many, the Charter represents the values that they themselves profess to hold, so the change was welcome if not celebrated. To others, like Conservatives today, the new Canadian constitution was included unwelcome clauses and restrictive limits. Their argument might be that there should be no set list of values that define Canadian law. It should be as it was before, where changing laws could adapt to the needs of present society. After all, the French/English divide which the constitution ostensibly tried to resolve in 1982, is not nearly as relevant to a western-based Conservative government today. But they are still bound by Trudeau's solution to the problem of his times, as the appointment of Marc Nadon demonstrates. The primary purpose of any charter as a written constitution was to prevent meddling.
Yet the Conservatives are in a better position today than the previous generation of constitutional reformers. Though they may bemoan the high bar set to amend the constitution (7 of 10 provinces and more than 50% of the population), at least they have a clear amendment formula. The governments of the 1960s didn't even have that. We have already patriated our constitution, so we do not have to go hat-in-hand to Westminster to introduce senate reform, for instance. And, while they might grumble about the power of an unelected judiciary over the parliament of Canada, or of an unelected Senate, if the Conservatives truly sought more democratic government, then surely a referendum on reform would be the clearest expression of its validity. Their decision to air empty criticisms of the Chief Justice reveals more about their values than statements and legislation about democracy. Perhaps they fear they will be unable to convince Canadians of their sincerity, which is precisely the power Trudeau wanted to give them.