Whither Judicial Restraint?

Remarks delivered on behalf of Hon. David Kilgour, P.C., M.P.

Edmonton Legal Forum

Mayfair Country Club, Edmonton

September 18, 2003

In Canada, there is growing concern that we have moved to a system which gives disproportional authority to the judicial branch of our government. The Constitution Act, 1982 expanded the authority of courts to examine the constitutionality of any law enacted by any legislative body.  The Charter of Rights and Freedoms in 1982 also altered the landscape.

Pre-Charter, judges had to work with subtlety on the constitutionality of legislation.  Whether an enactment was within the jurisdiction of Parliament or a legislature was the issue.  Most pre-Charter Rights were created by means of jurisprudence touching on statutory interpretation, striking down laws on the grounds of being ultra vires, and by striking down rules of evidence and procedure which had a substantively negative effect on rights.  That was the nature of the Anglo-Canadian common law tradition.

The Charter allows courts a much expanded role in scrutinizing legislative measures.  Skeptics are critical of how the judiciary exercises its new authority; supporters view the courts as the best venue for focusing on the real nature of legislation.  Both sides agree that the courts' role since 1982 has grown enormously.

Since the entrenchment of the Charter, the Supreme Court of Canada has dealt with, among other controversial issues, abortion, child pornography and assisted suicide.  We might recall that the Supreme Court not only upheld the child pornography law, but also made comparatively slight adjustments to it to preserve its constitutionality.

Law professor Patrick Monahan has concluded the success rate for Charter claimants was 63 percent (12 out of 19) in 2002, the highest rate for Charter claims in the last 10 years.  This success rate outpaces the average rate of success for the past 10 years, which ran at approximately one out of every three cases decided by the Supreme Court.

With its post-1982 power, there is a call for greater public accountability within our judiciary.  According to an Ipsos-Reid May 2003 poll, 66 percent of Canadians said they think the Supreme Court is driven by politics.  The pollster concluded that people are unhappy about the ideology of judges and the way they are chosen.  In its most recent August 11 poll, 71 percent of Canadians believe that only elected people should "make laws".  Obviously, the general public has serious concerns about this apparent "imbalance" in our current system.

Some Canadians are concerned that the courts have encroached upon the supremacy of Parliament by "reading into" our laws interpretations that appear to be inconsistent with or outside their intent when passed.  This appears to be a violation of the basic constitutional principle that Parliament makes laws, the executive implements them, and the courts interpret them. 

Officials of the executive branch or legislators are at liberty to debate any such point with critics, but the response of judges must be silence except in the formal manner of law elucidation.  It should be recalled that even the finding of a law to be inconsistent with a principle under the Constitution Act, 1867 or Constitution Act, 1982 is of that order.  For instance, an individual goes to a Court to claim that an illegality has caused his/her wrong, which requires a legality to remedy it.  The nature of the remedy will usually have some declaratory aspect to it.  When the constitution is involved, the declaration may well have the dimension that the law that caused the alleged wrong to the claimant will be characterized as inconsistent with the constitution.  If the law is inconsistent with the constitution, it is by application of s. 52 of the Constitution Act, 1982 of no effect.

Some would say the judicial branch would have been more tactful to have refrained from characterizing its own decisions as (a) more than merely declaratory and (b) as purporting to hold that laws are of no force and effect.  There was a debate in earlier constitutional discussion that the supremacy provision, s. 52, had its own independent effect and was not any sort of gift of the Court.  Had the Court's discourse centred on the adjudicative aspect of the legal event - i.e., the making of the declaration - and emphasized the role of the supremacy clause to strike down the impugned law, then the Courts might not have been thought of as initiating law against the enacting authority of Parliament or legislatures.

The following three factors might have contributed to the activist role of the judicial branch today.

First, as already mentioned, is that the Constitution Act, 1982, and particularly the Canadian Charter of Rights and Freedoms massively increased the scope of issues of constitutionality against which laws produced by the legislative branch had to be measured.  For the first time, the 1982 Constitution Act included a constitutionally entrenched guarantee of civil rights through the Charter, requiring courts to determine the constitutionality of laws in light of the Charter.  The existence of these alternatives invited litigants, many of whom would previously have had no access to justice.  Moreover, our constitutional values are now more concrete in the sense that they are written down.

Second, the increased access and sophistication of Canadians have greatly increased the attention paid to law and legal process.  People have therefore increasingly resorted to litigation.  Some say that the Charter of Rights has become the Charter of "Fights".  This has brought about a great deal of media attention, and encouraged a desire to participate even "from the sidelines" as it were.  The attention paid to the process stimulates debate.

Third, Canada opted in 1982 to adopt the Montesquieu vision at least in the sense of enacting the supremacy clause, s. 52.  This clause, as noted earlier, invalidates inconsistent laws.  Sections 1 and 33 of the Charter indicate that the choice was deliberate by a majority of Members of Parliament.  S. 1 guarantees the rights and freedoms of the Charter, except in the face of laws which are "demonstrably justified in a free and democratic society".  The "justified" part of this provision implies the court involvement.  S. 33 provides for the ability of Parliament or legislatures to override for a period of five years the effect of judicial pronouncements, or to preserve laws that might face such pronouncements.  The very existence of such a tool to enforce the sovereignty of Parliament indicates that the country after 1982 is going in a different direction constitutionally.

Several years ago, Westminster, took a more cautious view of the judicial role.  The guarantor thesis is recognized, but the de-legitimizing of laws for conflict with constitutional values is more indirect.

UK Differences

The European Convention on Human Rights, as adopted in Britain in 1999, does not appear to extend to the judges a direct authority to strike down legislation.  The Law Lords are still entitled to find inconsistency between a law of Parliament and the European Convention.  But this does not automatically strike down the law.  In some situations an inconsistency might benefit a particular litigant before because the Law Lords have retained the common law jurisdiction to stop prosecutions which involve an abuse of fundamental justice.  That jurisdiction existed before the European Convention.  In a declaratory sense, constitutional activism might not be structurally different from that in Canada except that the Lords appear to be fairly restrained in their constitutional outlook.

Perhaps the most widely applied criticism of the direction of Canadian courts today is the "thin edge of the wedge" variety – i.e., that although a current decision might not be a bad thing, one worries about the future.  No nine people, however wise and well informed, possess the ability to foresee fully the implication of major alterations to the constitutional norms upon which our country is founded.  Even if they did, they would for many lack the democratic legitimacy required for substantial changes in the nature of daily life for Canadians where judges create law categories.  They are seen by many as trespassing on the role of elected legislators.  Where the judicial branch seems to be substituting itself for executive case decision-making, it is seen as trespassing on the administrative operations of government.  Some see this as part of a process of erosion of parliamentary supremacy, in which the ultimate right of interpretation and its ultimate position of democratic accountability was replaced by the supremacy of the constitution as interpreted by the Courts.  Others say that legislators are in effect delegating their responsibilities to the courts by passing laws without clear direction as to their intent or by failing to address issues when laws are struck down as being in violation of the Charter.  In any case, it is the right of citizens of any democratic society to express such criticisms.  Criticism of judicial activism is always a legitimate element of political and social discourse in Canada.  It would be a sad day when the decisions made by power holders of Government could not be questioned in this country.

So tonight, having contended that our judicial system is subject to shortcomings, it is incumbent to suggest some ways in which improvements might be made.  I invite you to join me in discovering some alternative ways that might bring better balance to our system. 

While we  recognize that the courts have a pivotal role in any functioning democracy, we should consider making the judicial process more accountable.  This would help the credibility of our judiciary and give more respect and honour to the independence and reputation of the judicial process.  So the questions we ask ourselves are:  What is the scope of the judicial "accountability gap"?  What should we do about it?

A.      "Charter Dialogue" & Judicial Review Committee of Parliament

A proper balance between courts and legislators.  In my personal view, the Supreme Court of Canada should be serious about constitutional dialogue that involves extensive input from Parliament, the provinces and from Canadians generally in the form of a more open and transparent confirmation process.

Some say that in cases of controversial decisions of the Supreme Court of Canada that have a negative effect on statutes, Parliament has reacted quickly and more recently with explanatory preambles and so forth to replace the statutes with improved versions.  And the Court has not reacted petulantly, but with reserve and, largely, acknowledgment of the improvements so that the law could then move on.

One controversial ruling some years ago was the murder case, R. v. Feeney (1997 SCC), where the Supreme Court found that entering the home of a person police had strong reason to believe was involved in a recent murder was a violation of S. 8 (unreasonable search and seizure) of the Charter.  The Court ordered a new trial from which virtually all the relevant evidence would be excluded.  The inability of the police to enter houses led to ludicrous situations and forced the Court to grant a 6-month reprieve from the consequences of its Feeney judgement.  The Court was totally out of touch with the realities police face as they try to apprehend criminals and protect the public.  The Court's involvement got Parliament's attention, and it acted swiftly and with an even broader vision than the particular issue in Feeney. 

Some would say that the dialogue has in recent years been actually quite deferential to legislators and that the court rulings have not been as revolutionary as perceived during the height of the Charter era, namely, between 1985, when the Equality provision came into effect, and around 1997, when one could detect the gradual and subtle shift towards a consolidation period by the Supreme Court.

As a Member of Parliament, I'd suggest that the "dialogue" is not actually working very well.  Most times it seems that there is little two-way communication; rather, it's a one-way street.

One option might be to organize a Judicial Review Committee of Parliament for the purpose as considering what the court says, especially about laws being struck down.  First, it could conduct pre-legislative review to ensure that Parliament clearly specifies within each statute the intent of that statute, and obtains independent legal advice on the Charter compatibility of bills before they leave Parliament.  Second, it could prepare an appropriate response to court decisions, which MPs believe should be addressed through legislation.  This would increase the effectiveness of the "dialogue" process.

B.    A Constitutional Advisory Commission

Another proposal, suggested by Professor Dale Gibson at University of Manitoba, is to create a Constitutional Advisory Commission to assist the Supreme Court of Canada in situations where it is probable that a ruling of the Court would effect an amendment to the constitution or will bring about a constitutional revolution equivalent to national policy-making.  Such a proposal could be advanced, though tentatively and with the expectation that its examination by other constitutionalists will result in its improvement or, perhaps, its rejection in favour of a more satisfactory solution. 

The name is of no significance.  The words "advisory" and "commission" suggest desirable characteristics for such a body to possess: a purely recommendation role, independence, and permanence.  The Commission would consist of a manageable number of persons (let's say between five and eleven, the latter perhaps being a convenient number), appointed for substantial terms (approximately six years) by federal and provincial governments (perhaps each jurisdiction appointing one member).  These appointed individuals, with the assistance of researchers, would study and report upon constitutional questions referred to them by the Supreme Court of Canada and the governments of Canada or of any of the provinces.

There should be an approximately equal number of men and women on the Commission, and an attempt made to have its composition reflect the cultural, religious, and cultural diversity of the country.  A high level of professional competence should also be expected for each member, though this does not necessarily mean the legal competence we expect from Supreme Court justices.  While it would be desirable that some members of the Commission be legally trained, it would probably be undesirable if a majority of them were.  Expertise in economics, political science, philosophy, sociology, and history would be sought, as would experience in business (large and small), education, labour unions, government, and the helping professions.  It would not be possible to meet all these criteria in any single panel of commissioners, of course, but the effort should be made to come as close to doing so as possible.  Designing a technique that would ensure adequate representation and professional competence, while permitting each jurisdiction to select a member, would be challenging, but not impossible.

Funding for the Commission would come from federal and provincial governments, perhaps in proportion to each government's share of total Canadian tax revenues.  This funding, an annual appropriation, could be guaranteed by requiring the approval of some informed and impartial authority such as the Chief Justice of Canada.  

C.       Judicial Appointment Review Committee of Parliament

The May 2003 Ipsos-Reid poll reflected public concerns about the way judges are chosen.  A more transparent and accountable selection and appointment process is seen as needed to enhance public confidence in the courts.

Recently, it is felt the process ought to be subject to greater scrutiny through confirmation hearings, i.e., the setting up of a Judicial Appointment Review Committee of Parliament to engage in the judicial selection and appointment process.  The name and qualifications of any person proposed for appointment by the Prime Minister to the Supreme Court of Canada could be presented to the Appointment Review Committee of Parliament, which, after careful consideration, could make a recommendation on the suitability of the nominee's candidacy.  The recommendation shall be conducted and communicated to the Governor in Council prior to any such appointment being made.

Conclusion

The basic premise of this presentation has been that there is arguably a greater need for what has been referred to as "a recognition of judicial responsibility".   The courts evidently have a pivotal in our system,.  However, there are well-founded concerns that the Supreme Court of Canada may not be "institutionally equipped to make the judgements required for national policy-making".

Professor Kenneth Culp Davis thinks courts of last resort need a "research service" to assist them with the arduous task of "judicial lawmaking".  If such a resource is desirable in ordinary instances of judicial lawmaking, how much more is it needed in the case of amendments to the Constitution, and national policy-making?  It is often said that war is too important to be left to generals alone; it is equally true that amendment of the Constitution and national policy-making are too important to be left to judges alone.

The best approach probably lies in a robust and open and accessible appellate process.  Moreover, increased judicial restraint could serve to make the Court’s decisions more justified.  Finally, we must all acknowledge that  the answer lies inevitably in ensuring that the various branches of government are well informed and prepared to do their own jobs.