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Romance, Realism, and the Legitimacy of Implied Rights Grant Huscroft

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Romance, Realism, and the Legitimacy of Implied Rights Grant Huscroft ROMANCE, REALISM, AND THE LEGITIMACY OF IMPLIED RIGHTS GRANT HUSCROFT* Passage of the Canadian Charter of Rights and Freedoms in 1982 empowered Canadian judges not only to determine whether legislation infringed constitutionally protected rights, but also to declare legislation to be of no force or effect – to ‘strike it down’ – if they concluded that the infringement was not justified. This was a massive transfer of power from the elected branch of government to the judiciary and heady stuff for Canadian jurists. Prior to the Charter Canadian judges had no formal constitutional role in the protection of rights. The Canadian Bill of Rights, a statutory bill of rights that includes most of the rights enumerated in the Charter, had been in place since 1960, but it came to little despite its requirement that federal legislation should be rights-consistent.1 Indeed, the Canadian Bill of Rights is widely assumed to have failed because of judicial indifference to it, and the Chief Justice of the Supreme Court of Canada, Brian Dickson, was keen to ensure that this did not happen to the Charter. Dickson equated the success of the Charter with an activist role for the courts,2 and under his leadership the Court promoted and encouraged Charter litigation from the outset, easing standing rules and welcoming interventions by interested parties, among other things. Lawyers took their cue and a spate of Charter challenges to legislation was the result. The Court embraced its new lawmaking role under the Charter, making clear that the Charter was a break from the past and that its provisions would be interpreted generously and progressively.3 The impact of judicial review under the Charter is impossible to deny. Numerous * Faculty of Law, the University of Western Ontario. Thanks to James Allan, Nicholas Aroney, Mark Carter, Jeffrey Goldsworthy, Paul Rishworth, and Grégoire Webber, who commented on earlier drafts, and to Brandon Duewel, who provided research assistance. 1 Section 2 of the Canadian Bill of Rights provides as follows: ‘Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared …’. R v Drybones [1970] S.C.R. 282, is the only case in which federal legislation was declared inoperative as a result of the Canadian Bill of Rights (legislation prohibiting Canadian Indians from being intoxicated outside of an Indian reserve). 2 See Robert J Sharpe and Kent Roach, Brian Dickson: A Judge’s Journey (2003) 309-10. 3 Justice Dickson (as he then was) set the tone for the Charter era in Hunter et al. v Southam Inc. [1984] 2 S.C.R. 145 at 155 when he stated: ‘The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind’. See Grant Huscroft, ‘A Constitutional “Work in Progress?” The Charter and the Limits of Progressive Interpretation’ in Grant Huscroft and Ian Brodie (eds.), Constitutionalism in the Charter Era (2004) 413. 36 University of Queensland Law Journal 2011 laws have been struck down4 and many others have been altered substantially. Judicial review under the Charter has led to everything from the elimination of criminal law governing abortion;5 the establishment of same-sex marriage;6 and the legalization of medical marijuana7 to increased restrictions on police powers and investigative authority;8 the prohibition of extradition to face a possible death penalty;9 the extension of legal rights to refugee claimants;10 the right of prison inmates to vote;11 and so on. Dramatic change of this sort excites academics and I sense that many Australian constitutional law scholars look on with envy: Canadian constitutional law seems so much more interesting and full of possibilities. The point is not made often in Canada, but the Charter has significantly ‘Americanised’ Canadian constitutional law. It is not that Canadian constitutional law resembles American law in terms of the substantive outcomes reached; on the contrary, the Supreme Court of Canada has reached decisions that the US Supreme Court would reject out of hand. The point is that in Canada, as in the United States,12 most of the major political issues in Canada eventually end up in Court one way or another, and judges in both countries have the power to strike down legislation if they consider that it unjustifiably infringes constitutionally protected rights – rights that are vaguely worded to say the least. It is important to emphasise just how radical this power is in the Westminster constitutional tradition. Although countries such as New Zealand and the UK have also adopted statutory bills of rights, they did so in a manner that was more in keeping with traditional constitutional roles. Both the New Zealand Bill of Rights Act 1990 and the UK Human Rights Act 1998 deny judges the power to invalidate legislation. The extent to which this position reflects constitutional orthodoxy can be seen in Australia as well: neither the ACT Human Rights Act 2004 nor Victoria’s Charter of Human Rights and Responsibilities Act 2006 empowers judges to invalidate legislation, and even the strongest proponents of a federal bill of rights no longer advocate a supreme-law bill of rights. It is simply a non-starter. It is not difficult, then, to see why the first implied rights cases caused so much 4 Peter Hogg has noted that in the first twenty years of the Charter, 83 federal and provincial laws were struck down. He describes the outcome as follows: ‘Canada is a tolerant, sophisticated, liberal society with a flourishing democracy. For so many of its laws to be found in conflict with the Charter guarantees can only be explained by activism on the part of the Supreme Court of Canada’. See Peter W. Hogg, ‘Canada: From Privy Council to Supreme Court,’ in Jeffrey Goldsworthy (ed), Interpreting Constitutions: A Comparative Study (2006) 88. 5 R v Morgentaler [1988] 1 S.C.R. 30. Subsequent to the decision in Morgentaler, Government-sponsored legislation regulating abortion passed the House of Commons but was defeated in the Canadian Senate. 6 Halpern v Canada (2003) 225 D.L.R. (4th) 529 (Ontario Court of Appeal). Parliament passed legislation extending the decision in Halpern to apply nationally, following the receipt of the advice of the Supreme Court of Canada that such legislation was constitutional. The Court’s decision in Reference re: Same-Sex Marriage [2004] 3 S.C.R. 698, and in particular the Government’s decision to seek an advisory opinion from the Court, is discussed in Grant Huscroft, ‘Political Litigation and the Role of the Court’ (2006) 34 S.C.L.R. 35 [Huscroft, ‘Political Litigation’]. 7 A line of cases beginning with R v Parker (2000) 188 D.L.R. (4th) 385 (Ontario Court of Appeal), culminating in requirements that the government grow the marijuana in some cases. 8 See, eg, R v Duarte [1990] 1 S.C.R. 30; R v Mann [2004] 3 S.C.R. 59. 9 United States of America v Burns [2001] 1 S.C.R. 283. 10 Singh v Minister of Employment and Immigration [1985] 1 S.C.R. 177. 11 Sauvé v Canada (Attorney General) [2002] 3 S.C.R. 519. 12 As Alexis De Tocqueville observed famously, ‘There is hardly a political question in the United States which does not sooner or later turn into a judicial one’. Vol 30(1) Romance, Realism, and the Legitimacy of Implied Rights 37 controversy and excitement in Australian academic circles in 1992. Here was a way for the Court to get into the rights business – to assert the existence of constitutional rights and a role for itself in defining and protecting them – without a bill of rights. How much easier to insist that rights may be implied by the Australian Constitution than to convince Australians to amend the Constitution to include a bill of rights! Twenty years on, however, forceful critiques from James Allan, Nicholas Aroney, Jeffrey Goldsworthy, and other scholars have taken their toll. The implied rights idea appears to have been contained, and radical changes in the law are less likely today than once seemed possible.13 The deliberate decision of the framers of the Australian Constitution not to include a bill of rights was always a strong argument against implied rights, and the recent failure of the proposal to adopt a federal statutory bill of rights might be thought to put paid to the idea rights can be implied by the Australian Constitution.14 Proponents of implied rights are unlikely to acknowledge defeat, however, for their conception of constitutional law is romantic at its core. They are pessimistic about the elected branch of government and its motivations; they fear unrestrained majoritarianism. At the same time, they are romantic about the judiciary; they suppose that it is the only branch of government likely to protect vulnerable minorities and to preserve the integrity of the constitutional order, and if implied rights are necessary in order to allow the judiciary to accomplish these important goals, then so be it.
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