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The Suprienie Court ®F Canada in the Age E Rule Of THE SUPRIENIE COURT ®F CANADA IN THE AGE ° 9 E RULE OF LAW AND FUNDANIENTAL TS UNDER CANADA'S CONSTITUTION Lorraine E. Weinrib* Toronto In the aftermath ofthe SecondWorld War, democraticnations have embracedjudicial protection ofindividualautonomy, equalityandrespectfor human dignity. Whileeach nation's arrangements have distinctive features, there is a discernible model of postwar rightsprotection. This essay traces the roleofthe Supreme Courtin Canada's transformation into such apostwar, rightsprotectingpolity both before and after the adoptionofthe Charter in1982. Justafterthe war, the Supreme Court took the intiative toprotectrightsjustas Canada reachedpolitical independenceand the Court became Canada's highest appellate court. Facing challenges to themostbasic assumptions of liberal democracy, some ofthejudges inferredprotectionforfundamentalfreedoms from the structure of Canada's parliamentary democracy, the federal-provincial division ofpowers and the heritage of the flexible, unwritten British constitution. Although the Court ultimately abandoned this approach, it recently returned to this 2001 CanLIIDocs 121 legacyinimportant reference casesthatdeliberatedupon theplace ofdirectdemocracy and the independence ofthe courts in our constitutional order. This essay compares the Court's understanding of its role in protecting rights tinder this traditional approach as well as under the Charter, to the postwar model ofrightsprotection. It notes that the Court has on occasion departedfrom this model to resolve aperceived tension between vigilant judicial protection of rights and the prerogatives of the executive and the legislature in our system ofgovernment. The author argues that Canada's adaptation of the postwar model to the Canadian context resolves that tension without prompting such departures. Support for this argument rests on a number of considerations. These include the conceptual substructure of unwritten constitutionalnorms, the institutionalstructureandremedialpurposes ofthe Charter, and the common law's affinity to the postwar model of rights-protection . Au lendemain de la Seconde Guerre Mondiale, les nations démocratiques ont embrassé les politiques de protection de l'autonomie individuelle, d'égalité et de respectde la dignitéhumaine. Bien que les dispositions de chaque nation comportent desparticularités, onpeutidentifierunmodèled'aprèsguerredeprotectiondes droits. Cet article retrace le rôle de la Coursuprême dans la transformation du Canadapar cette politiqué d'après guerre de protection des droits, aussi bien avant qu'après l'adoption de la Charte en 1982. Juste après la guerre la Cour suprême a pris l'initiative de protéger les droits au moment même où le Canada atteignait l'indépendance politique etque la Cour devenait laplus haute cour d'appel aupays. Faisant face à une remise en question des postulats les plus fondamentaux de la démocratie libérale, certainsjuges ontdéduit laprotection des libertésfondamentales de la structure de la démocratie parlementaire canadienne, dupartage despouvoirs entre leprovincial et lefédéral, et de l'héritage de la constitution britannique, souple * Lorraine E. Weinrib, ofthe Faculty of Law, University ofToronto, Toronto, Ontario. 700 THE CANADIAN BAR REVIEW [Vol.8O et non écrite. Bien que la Cour ait ultimementabandonné cette approche, elle est revenue à cethéritage dansdes affaires importantes de renvoiportant sur laplace de la démocratie directe et sur l'indépendance des tribunaux dans notre ordre constitutionnel. Cet essai compare la compréhension que la Cour a de son rôle dans la protection des droits, en vertu de cette approche traditionelle et en vertu de la Charte, avec le modèle d'après guerre deprotection des droits. Il relève qu'à l'occasion la Cour s'est écartée de ce modèle pour résoudre le problème de la tension qu'elle avait perçue entre une protection judiciaire des droitsfaite avec vigilance et les prérogatives de l'exécutif et du législatifdans notre système de gouvernement. L'auteur soutient que l'adaptation du modèle d'après guerre ail contexte canadien résout cette tension sanspour autantsacrifier laprotection des droits. Cette thèses'appuie sur un certain nombrede considérations. Parmi celles- ci ily a la sons-structure conceptuelle de normes constitutionnelles non écrites, la structure institutionnelle de la Charte etsesobjectifs de remédierà desproblèmes, ainsi que les affinités de la common law avec le modèle d'après guerre de protection des droits. I. The Age ofRights: Principles and Transitions ........ ... ........ ... .. .. ... 701 II. The Postwar Model of the Constitutional State .. ... ... ..... ..... ... ... ..... 704 III. The Supreme Court and the "Implied Bill ofRights" . ........ ... .. ... ... 7102001 CanLIIDocs 121 IV. The Charter: Legal Structure and Institutional Roles ... ..... ... ... ..... 720 V. The Supreme Court and the Charter.. ........ ... ... ........ ... ..... ........ ... ... 734 VI. Conclusion ........ ... ... ........ ... ........ ... .. .. ........ .. ... ... ... .. ..... ... .. ... ... .. ... 743 "The development of the constitutional state can be understood as an open sequence ofexperience-guidedprecautionary measuresagainst the overpowering ofthe legalsystembyillegitimate power relations that contradictitsnormative self- understanding. "l ". ..'true' democracy recognizes the power of the constitution - fi-uit of the constituent authority - to entrench thefimdamental human rights and the basic values ofthe system against thepower ofthe majority. Such limitation ofmajority rule does not impairdemocracy but constitutes itsfull realization. "2 "That in thequestionsfacing courts wemustexcludetheory hasneverbeen the rule and never can be the rule: theory is simply the completion ofideas. "3 I J. Habermas, BetweenFacts andNorms (Cambridge, Mass: MITPress, 1996) at 39. UnitedMizrahi Bank Ltd. v. Migdal Cooperative Village (1995), P.D. 221 atpara. 47 per Justice Aharon Barak, President, Supreme Court ofIsrael. I.C. Rand, "The Role ofan Independent Judiciary in Preserving Freedom" (1951) 9 U.T.L.J.1 at 12. 2001] The Supreme Court ofCanada in the Age ofRights 70 1 I. The Age ofRights : Principles in Transition We' live in the age of rights.4 In the aftermath of the Second World War, commitment to theprinciples embodied in the modernidea ofhumanrights has intensified in the West, although the record of achievement is undeniably blemished. Liberty, equality and respect for human dignity have come to enjoy unprecedented support as abstract principles. Nonetheless, no single magic formula protects these principles in all contexts. It falls to each nation to make and re-make its own arrangements, either alone or in concert with other nation states: The fundamental problem concerning human rights today is not so much how to justify them, but how to protect them.5 These arrangements build upon several fundamental tenets of constitutional government. The first is an understanding of democracy as the sovereignty of the people, not of the legislature in the abstract or as a particular, temporarily elected, law-making body. It is this meaning ofdemocracy that legitimates the exercise of state power over all members of the postwar nation state.6 The second is that government power is not unlimited. It operates under the 2001 CanLIIDocs 121 discipline of the rule oflaw, bolstering the idea that liberty prevails unless and until the law-making machinery has takenthe trouble to stipulate otherwise. To these, a third "experience guided precautionary measure" has been addedin the postwar period, that the constitutional state must directly protect fundamental rights andfreedoms? This third tenetreflects the painfully learnedlessonofthe twentieth century. Generally accepted practices of democratic government reliably secure neither the long-term continuity of democracy, nor the optimal operation oftherule of law, nor the entitlements to liberty, equality andrespect fordignitynow considered fundamental within thepostwar,pluralist,egalitarian, and often divided state. The postwar redesign of the democratic state has as its daunting aspiration the correction of these failings. The postwar agenda is an ambitious undertaking. It responds to dramatic changes in the nation state. The nation state is no longer the state of the nation: .. .today all ofus liveinpluralist societies . .. [in which] themajority culture must give up its historical prerogative to define the official terms of the generalized political culture that is to be shared by all citizens, regardless of whence they come andhow 4 C.N. Tate & T. Valinder, eds., The Global Expansion of Judicial Power (New York: New York University Press, 1995),, C.R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago: University of Chicago Press, 1998), M. Shapiro and A. Stone, "The New Constitutional Politics of Europe" (1994) 26 Comparative Political Studies 397 . 5 N. Bobbio, The Age ofRights (Cambridge: Polity Press, 1996) at 10. 6 S. Freedman, "Constitutional Democracy and the Legitimacy ofJudicial Review" (1990-91) 9 Law and Philosophy 327 . See R:L. Brown, "Accountability, Liberty, and the Constitution (1998) 98 Colum. L. Rev. 531 for the origins of the counter-majoritarian dilemma in the U.S. context. Habemas, supra note 1. 702, LA REVUEDU BARREAU CANADIEN [VO1.80 they live. .Such generalized political cultures haveasreference national constitutions ; each ofthem contextualizes the same universalist principles, popular sovereignty and
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