In early September 2003, the leader of the Canadian Alliance and leader of Her Majesty’s Loyal Opposition, Steven Harper, said several times that, in his view, judges across Canada who had come to a similar conclusion on a particular issue were doing the bidding of the executive branch of the federal government.

This allegation was preposterous and demonstrably false, but the fact that Mr. Harper felt that the public would be receptive to such an attack on the role of the judiciary in any case, but particularly in a Charter case, was a call to greater understanding of the roles of the courts, Parliament and the executive branch in a country that has adopted constitution- al democracy over representative democracy.

This is, after all, what the adoption of the Charter of Rights and Freedoms was all about. It was about enshrining limits beyond which the legislative, the executive, and the judicial branch should not go. It is a discipline on the power of the majority. It is meant to provide a buffer for those whose rights might well be ignored if Parliament remained ”œsupreme.”

It has also placed an important burden onto the shoul- ders of the judiciary. It is the judges we asked to decide, as we adopted the Charter, when the limits are overstepped. When a judge strikes down a law or declares it, a regulation or an order antithetical to the Charter, that judge is doing our bidding ”” the people’s bidding ”” and though we may from time to time disagree with the judgment, we must not leap to the idea that the judge is doing something that should not be done or that he or she is acting according to the dictates of the party in power.

I propose here to examine a series of examples of challenges that have or might come, and to use them to explore the proper roles of the courts and of the other two branches of gov- ernment when it comes to our funda- mental rights and freedoms. I will do this under various headings meant to capture what I see as the basic ques- tions that must be asked in this regard.

Should we be surprised that judges sometimes ”œwrite laws”?

No. We should not.

Of course, judges are not elected and do not form part of the legislative branch, but they have been ”œwriting laws” for centuries, and we are glad that they do. The entire common law is built on the incremental additions to the law by judges faced with this or that fact pattern and deciding what it is just to do about them, with an eye to what other judges have done in similar cases and what the legislative branch has done from time to time to catch up with or redirect the judges’ efforts.

We have for centuries built democracies based on the rule of law, which sounds nice but is really an inherent contradiction. If we truly liked democracies we would not let the rule of law get in the way but simply do what the majority demanded. The rule of law is the buffer between us and the state; it is the guarantee that not only we but the very state itself will be governed by law.

We are glad about this, and all believe that we have built something worthwhile, worth defending. ”œFor much of modern history,” Farheed Zakaria has written in The Future of Freedom: Illiberal Democracy at Home and Abroad, ”œwhat characterized govern- ments in Europe and North America, and differentiated them from those around the world, was not democracy but constitutional liberalism. The ”˜Western model of government’ is best symbolized not by the mass plebiscite but the impartial judge.”

If that is so, we cannot regret but must celebrate when judges get in the way of the legislative branch. It is con- firmation of the vibrancy, independ- ence and courage of the judicial branch. It is confirmation that our sys- tem works.

In our federal system of govern- ment, as Canadians, we have also spent 135 years asking judges to deter- mine which of our various parliaments and legislative assemblies have power to do what. Judges, though they have been applying an underlying constitu- tion, have decided the precise limits of jurisdiction. Sometimes, in order to save the challenged legislation, they have ”œread into” it things that were not explicitly voted. Have the judges been ”œwriting law”? Yes. Has this been an overstepping of the judicial role? Most emphatically: no.

Let us go further than simply not being surprised when judges appear to write law rather than only interpret it. We should rejoice that we have the most independent judiciary in the world, which is managing to cope with the demands not only of a federal con- stitution but also of a constitution that, with the Charter, is also rights based. I do not suggest that improve- ments cannot be achieved in the way we name our judges, or that the inde- pendence of the judiciary cannot be enhanced, only that we are already doing very well and should be leery of any dramatic changes.

We should also wonder, if it were not the judges deciding when Parliament has been insufficiently respectful of our dignity as individuals, who we would want to replace them in that role. We should not wonder long before concluding that, yes, judges do in large measure write the laws that govern us and our state, and that, yes, we are glad that it is so.

This brings us necessarily to the idea that the development of laws is a shared responsibility. It involves the legislative branch, of course, and also the executive within it that must decide which matters to bring to Parliament’s attention and how to implement what Parliament has voted. But it also involves the courts in their ongoing exchange with the other two branches as to what is constitutional and what is not. And it also involves us, as citizens, in as much as the debate as to what individual dignity and fundamen- tal rights mean to Canadians cannot only take place in legislative chambers or courtrooms. The debate reaches there once it has passed through us.

Should Parliament pass laws that are demanded by the public and ignore the Charter implications, leaving them to the courts?

This, of course, is a rhetori- cal question to which you have all answered ”œno,” but it is a question that hides many shades of a complicated dilemma, and there have been and will be situations in which, I submit, the answer is ”œyes.” Where the answer is ”œyes,” we must recognize that the Charter and the foisting of the Charter-related issues onto the courts not only do as but rightly should put a kind of legislative role onto the courts. They play a role that might logically be played prior to the governor general’s signature but has been shunted downstream in time, to the judges.

In the wake of September 11, the pressure was high on government and on Parliament to adopt legislation providing for greater police powers and for the abridgement of the rights of witnesses and defendants in certain cases. Bill C-36, adopted with a num- ber of changes recommended by the Canadian Bar Association including a sunset clause that will ensure later Parliamentary debate, removes the right to silence of people interrogated by the police. We will certainly see Charter challenges of this provision. Indeed, there appears to be an attempt to use this provision to force a witness to testify in the 1985 Air India bomb- ing case, hardly the purpose of C-36’s abrogation of the right to remain silent in a police investigation. It allows for the detention of people not charged with any offence if they refuse to sign lengthy undertakings placed before them, and without their having access to the evidence on which they have been brought to this point. These are dramatic departures, one hopes temporary, from the norms we thought enshrined in the Charter, but it is very arguable that debate as to the acceptability of these and other provi- sions under the Charter should not delay a timely legislative response to the danger of terrorist attack.

Many said the same about legisla- tion to stop tobacco advertising,1 that the problem was so serious that a very serious legislative response was needed and that the Charter ramifications would just have to wait for the challenge that was predictable when people’s rights to speak are taken away. My point here is not to say whether these arguments were right or wrong, only that there do arise situations in which it is politically, logi- cally or responsibly not an option to have all the Charter kinks worked out before the legislation is passed.

Some legislative changes bring unexpected results, sometimes the opposite of what was intended, and legislative inaction as to corrective measures leaves a legislatively created problem squarely in the lap of the courts. A good example is the burgeon- ing numbers of people in Canadian jails who have not been convicted of anything. Legislation allowing for the release of accused persons, on lengthy undertakings about their behaviour while awaiting trial, was meant to relieve the burdens on prisons and to avoid incarcerating of people who would be harmed rather than helped by it. Unfortunately, the delays in get- ting to trial and the lengthy list of undertakings required have made it so that these unconvicted accused violate the terms of their release and find themselves behind bars for that reason, even though they are convicted of no crime. This development is falling dis- proportionately on the poor and on minorities. Legislators can perhaps be forgiven for having unwittingly created the problem, but it is more difficult to forgive them for not acting to deal with it but leaving to judges the unsavoury task of sending innocent people to jail.

The fact is that all legislation in Canada receives a quick vetting for Charter compliance before it is brought to final reading. This has not stopped the adoption of legislation found by the courts to violate funda- mental rights or freedoms.

I think that we must come to the conclusion that the legislative and executive branches have the obliga- tion not to foist onto the courts meas- ures that they know will eventually be struck down. It is also unavoidable that there will be an ongoing conver- sation among the three branches of government as to just what will be struck down and what not.

This will sometimes mean the adoption by Parliament of legislation about which there is considerable doubt, with the courts left to arbitrate. When they do arbitrate, we must see that as a good thing, not interference.

Should Parliament wait until the courts make legislative action obligatory?

Some have accused the govern- ment in power of so delaying bring- ing Parliamentary attention to issues that cry out for it that the citizens affected are compelled to bring the matter to the courts and to ask them to do what Parliament should have been asked to do.

This was certainly the allegation heard during the courts’ handling of the thorny same-sex marriage cases. If Parliament had only acted, many said, then the courts would not be saddled with the cases and we would not be raising against the courts the ire of the more traditionalist elements of our population.

Of course, this was said generally by those who hoped for a particular result, and who took for granted that the party in power could easily ensure that Parliament would come to the desired result and so spare the courts the trouble. They were wrong, and we are seeing now that, even with the prod from several judgments all going in the same direction, Parliament, while closely divided, is reticent about going legislatively in the same direc- tion as has been chosen judicially.

SIGN UP

The inner workings of government

Keep track of who’s doing what to get federal policy made. In The Functionary.

Read it now.

SUBSCRIBE

The Functionary

Our newsletter about the public service. Nominated for a Digital Publishing Award.

There are some cases, then, and this was one, in which the responsible course is not to inflame the passions before the table is properly set, and in which what might seem legislative dithering is really the prudence of allow- ing a more generalized public debate before Parliament is brought to vote. This is not to say that our legisla- tive and executive branches across the country have always taken the path of inaction out of prudence. Lesser motives have sometimes governed, and to our detriment.

We face today a crisis of unrepre- sented litigants and accuseds, who need lawyers but cannot afford them, and are forced to ask the courts to order that legal aid be granted or that their lawyers’ reasonable fees be paid by the state. Here, the courts have been faced with a problem that gov- ernments knew would come but did nothing about. The pro bono work of lawyers is simply outweighed by the scope of the problem. Even when the courts, quite properly, said that in such and such cases the state could not bring its weight down on the individ- ual without making sure that he or she was properly represented, the reaction from the public purse was less than even half-hearted, and the courts will continue to be saddled with this ques- tion for many years.

Governments that saw the political value of megatrials were quite happy to leave to the judges the issue of what a trial of a year or a year-and-a-half meant for the legal fees of all the defendants being asked to sit through them.

That is, there have been several examples of parliamentary and execu- tive inaction being tantamount to dereliction, and the courts have found themselves faced with problems that ought to have been resolved earlier. For example, should it have been up to the courts to say that New Brunswick had to make sure the mother was rep- resented in proceedings in which the province sought to take away her child? But this is perhaps unavoidable to some extent. The point is that we should be glad that the courts are there when the other branches of govern- ment fail or refuse or forget or are politically unable to live up to their responsibility.

Should judges be elected or be made representative of the electorate if they are going to ”œwrite law”?

No.

The very purpose of the judicial branch is to be and to appear inde- pendent of political current. In the context discussed here, Charter chal- lenges and the judicial review of legis- lation and regulation, the judiciary would be considerably weakened and its authority sapped if judges’ political stripes appeared to dictate their judg- ments. We would then be at the very juncture where the alarmist Stephen Harper said we already were.

Parties arriving at court should not have to ask what political leanings the judge has, or who contributed to his or her election campaign.

Judges should not be put in the position of having to declare their views and leanings prior to confirmation of their nomination. Judges are human and cannot be expected to have no leanings at all, but they can be expected to deal with each case objec- tively and with the mental discipline of setting aside all prejudices. This we have asked of them and this they have done, barring rare exceptions. It would be nearly impossible for them if we forced their nomination through con- firmation hearings at which politically motivated questioners could force them to marry themselves publicly to particular views.

This does not mean to say that we could not throw more light onto the way in which judges are chosen, the lengths to which those involved in the nomination process go to ensure the candidate’s credentials or every- thing that is done to preserve inde- pendence of the judge while he or she sits as a judge. Indeed, a more trans- parent light of day on these preoccu- pations might well serve to reassure Canadians that they and the legisla- tion passed by their elected represen- tatives are in the hands of a reliable judiciary. But it is to say that great care must be taken before changing a sys- tem that has long served well.

Though all legislators profess a respect for the values enshrined in the Charter, different legislators have dif- ferent views as to what that requires. If that is so, we should not be surprised that not all judges agree that the legis- lation before them reflects the values inherent in the Charter. We should not be surprised that some legislation can be found valid here, invalid there, valid then, invalid now.

We can be surprised, though, at invitations to see in this discourse, in this search for the right answers, an overstepping of the role of the courts. We can be surprised at suggestions that we should go backwards to a time when laws were not reviewable on the basis of their respect for fundamental rights. We can be surprised at those who, when they do not like the result in a particular case, suggest that the whole system is falling down.

Judges are not forcing Canadians to accept what is morally wrong when they decide that reserving marriage only to certain kinds of people simply does not sit with the equality provisions of the Charter. They are simply telling us what they see as required by that Charter.

Judges have not gone off the deep end when they decide that a law aiming at juvenile pornography is mostly alright but goes just a step too far when it criminalizes the defendant’s own per- sonal and privately kept drawings.

It is right that it should be our judges who decide whether the individual freedoms enshrined in the Charter include the right, for example, to put an end to one’s life, and if so in what kinds of circumstances, and whether there is a right to have some assistance in that regard.

It is right that judges should, in open proceedings, decide whether detainees deserve to be detained, or whether the police’s view of their threat to security is exaggerated. In doing this, it is right that the judges be able to pass judgment on the acceptability, in the eyes of our Charter, of the laws that authorize the detainment.

It will be right for judges to pass judgment on a law, should current proposals be brought to legislation, requiring all Internet providers to keep records available to the police to show to whom you have sent and from whom you have received E-mails. It will be right for judges to pass judg- ment on laws that authorize customs agents to open mail, even if it is your mail addressed to your lawyer. It would have been right, had the federal gov- ernment not correctly reversed itself, for judges to pass judgment on a law that required lawyers to report on their own clients’ financial transactions, and without telling their clients.

The judges may be wrong, the par- ic, the particular accused may be despi- cable, but the judges have tried to do and they will continue to do what is required of them: pass reasoned, dispas- sionate and analytical judgment on the efforts of the legislator.

It is this approach that will carry us through the coming challenges that we should be happy to face, as they are the tools of progress. They are not obstacles to democracy but bulwarks against the kind of democracy we have decided we do not want. They are guarantors that our democracy will be rules- based, will be respectful of the dignity of the individ- ual and will comply with the minimum thresholds we have set for our rights and freedoms.

That our courts should be the guardians of these bulwarks and guaran- tees is right.

It is through their kind of rea- soned, dispassionate and analytical work, each case building on the last, each precedent nourishing the next, that we will meet the continuous chal- lenge of building and constantly improving a society that is respectful of us as individuals, not just of our rights but of our responsibilities, too.

In this task, the legislative and executive branches must be alive to the courts’ evolving analysis, and we should play our roles as good citizens, helping toward a common under- standing of the values we are prepared to defend.

¹ The author represented Imperial Tobacco Limited in the successful challenge of the Tobacco Products Control Act‘s prohibition against tobacco advertising and represents Imperial Tobacco Canada Limited in the ongoing challenge of the Tobacco Act which, among other things, prohibits any tobacco advertising that evokes an image or an emotion concerning a style of living.