The Power of the Courts in Canadian Democracy: Discussion Background

On March 22, 2017, our discussion will explore the boundaries which should exist between the legislature and the courts, with particular reference to the Canadian Charter of Rights and Freedoms.

In Canadian Constitutional Democracy:

• Legislators are elected; hence they can be held accountable by the electorate, and removed from or returned to office, through recurring elections.
• Judgers are appointed; they cannot be held accountable by the electorate or the legislature; they can only be held accountable: for their decisions, to more senior judges in appeals; for egregious behaviour, to more senior judges through a rarely applied process.
• The Executive is, in title, a hereditary Monarch with no accountability but only vestigial powers; in practice the Executive is the Prime Minister and the Governor-in-Council, having considerable power, but who are accountable as members of the Legislature.
• The Constitution codifies the responsibilities of governments and the rights of the people.

The Constitution was created by elected legislatures. The provisions of the Constitution are applied and interpreted by the Courts.

Our discussion will consider the latitude which the courts ought to be allowed in interpreting law, particularly the provisions of the Canadian Charter of Rights.

The most commonly accepted assessment of the preferred latitude is expressed by the Supreme Court: “our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life”. In this assessment the Courts find it appropriate to apply considerable latitude in interpretation of the provisions of the Constitution, both with respect to civil rights and appropriate judicial processes. Judicial interpretation should respond to changes in social awareness and mores, as well as to changes in technology and business practices. How far can this interpretation go? In the words of one Supreme Court Justice: “Supreme Court judges ordinarily make law, rather than simply applying it”.

Although there is broad acceptance of this interpretation, there are several possible grounds to challenge it:
• The “living tree” doctrine is based on a misinterpretation of the judicial decision from which it derives; the heart of the case concerns statutory interpretation not constitutional rights (Honickman)
• The essence of democracy is that elected representatives, who are accountable to the electorate, make the law, not a “committee of nine unelected lawyers” (Scalia)
• The Supreme Court has chosen to reject the wishes of Parliament in expanding the applicability of the Charter (BC Motor Vehicles 35-37); the Court thus states that it and it alone is the sole authority for constitutional interpretation
• Courts have neither the mandate nor the capability to determine social consensus and mores – still less the appropriateness of social policies: “the existence of the law is one thing its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is another enquiry.” (Austin)

That said, there is a clear need for some Court discretion in Charter interpretation:
• It is in the nature of constitutions to be general in scope and allow for interpretation according to circumstances.
• Politicians themselves created the Charter and invited the Supreme Court to interpret it.
• Social mores change more rapidly than Constitutions; a scant 60 years ago racism, sexism and religious discrimination were tolerated in Canada.
• Only Parliament can directly change the law; courts are by nature reactive.
• The Charter limits the scope of judges in extending the law: “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”

Questions for Discussion

• In a democratic state, as a matter of theory, what should be the balance between the power of the legislature and the power of the courts?
• What are the main arguments in support of the living tree doctrine? Are they valid?
• Does the Supreme Court make law? Should it?
• Ought there be constraints on the interpretative powers of the Supreme Court?
• Is constitutional change a viable alternative to judicial interpretation?

Basic Background Documents

The “Persons” Decision, from which the ‘living tree’ doctrine is derived:
http://www.bailii.org/uk/cases/UKPC/1929/1929_86.html

Contemporary Living Tree Interpretation: Reference re Same Sex Marriage. (see Sec 22)
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2196/index.do?r=AAAAAQAdInByaW5jaXBsZSBvZiBleGhhdXN0aXZlbmVzcyIAAAAAAQ

The “BC Motor Vehicles” Decision, in which the interpretation of Parliament is considered and rejected: (see Sec 35-37)
http://www.canlii.org/en/ca/scc/doc/1985/1985canlii81/1985canlii81.html

The “Chaouili” Decision, in particular the dissent (esp. para 167)
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2237/index.do

Background Reading

Speeches by the Chief Justice:
http://www.scc-csc.ca/court-cour/judges-juges/spe-dis/bm-2013-02-05-eng.aspx
http://www.fact.on.ca/judiciary/NewZeal.pdf

Praise for the living tree doctrine:

Concerns about the living tree doctrine:
http://www.austlii.edu.au/au/journals/UQLawJl/2006/2.pdf

The Living Fiction: Reclaiming Originalism for Canada

Personal Rant

Constitutions: Polished Wood or Living Tree?

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