Democracy, Judging and Bertha Wilson
Robert E. Hawkins & Robert Martin*
This paper offers a critical review of Supreme Court
Justice Bertha Wilson’s career, through an analysis of both
her judgments and speeches. The authors argue that Justice
Wilson failed to respect the limits which should constrain
judicial review in a democratic society. In Part I, they pro-
vide a sketch of basic principles of liberal democracy as well
as fundamental concepts associated with statutory interpre-
tation and constitutional adjudication.
Part II examines more closely the work of Justice
Wilson and her expansive view of the role of the courts un-
der the Canadian Charter of Rights and Freedoms. They
contrast this view with the proposition that the framers of the
Charter never intended the courts to exercise such broad
powers. By appropriating a quasi-legislative role for the ju-
diciary, the authors suggest, Justice Wilson neglected to re-
spect the separation of powers doctrine, with the result that
she breached the basic democratic principles of elected gov-
ernance and accountability.
Part III is highly critical of the “contextual approach”
developed by Justice Wilson in her judgments and argues
that it leads to decisions which are divorced from principle
and based solely on a subjective theory of interpretation. Her
contextual approach, they argue, offends the liberal notion of
equality.
In Part IV, the authors examine influences which
shaped Justice Wilson’s approach to the law and suggest that
she saw judicial review as an inherently subjective activity.
The authors conclude that the approach to adjudication un-
dertaken by Justice Wilson was inappropriate in and an af-
front to liberal democracy.
Cet article offre une revue critique de la carrire de
Mine lejuge Bertha Wilson h travers une analyse de ses d6-
cisions et de ses discours. Les auteurs soutiennent que Mime
le juge Wilson n’a pas respect& les limites qui devraient en-
cadrer ]a rdvision judiciaire dans une socidt6 ddmocratique.
Dans la premiere partie, ils fournissent un aper~u des princi-
pes de base de la d6mocratie libdrale ainsi que des concepts
fondamentaux associds A l’interpr~tation et h l’adjudication
constitutionnelle. La deuxi me partie s’attarde plus prdcisd-
ment sur le travail de Mme le juge Wilson et sur sa vision
expansive du rfle des tribunaux sous la Charte canadienne
des droits et libertis. Les auteurs soumettent que les rddac-
teurs de la Charte n’ontjamais eu l’intention d’octroyer aux
tribunaux des pouvoirs aussi 6tendus. Ils sugg~rent qu’en
accordant un r6le quasi-16gislatif au domaine judiciaire,
Mme lejuge Wilson n’a pas respect6 la doctrine de la s6pa-
ration des pouvoirs, ayant ainsi pour rdsultat de briser les
principes ddmocratiques fondamentaux, soit un gouveme-
ment dlu et responsable.
La
troisi me partie est hautement critique de
l’approche contextuelle developpe par Mme lejuge Wilson
dans ses jugements. Les auteurs prdtendent que cette appro-
che mbne h des ddcisions ddnu.es de principes et fondes
uniquement sur une thdorie d’interprtation subjective. Son
approche contextuelle entre en contradiction avec Ia notion
libdrale d’6galit6. Dans la quatri~me partie, les auteurs
examinent les facteurs qui ont influenc6 l’approche de Mme
le juge Wilson face au droit et sugg4rent qu’elle a perqu la
rdvision judiciaire comme une activitA subjective en soi. Les
ateurs concluent que l’appreche prise par Mme le juge
Wilson envers l’adjudication 6tait inapproprihe et constituait
un affront h la d6mocratie libdrale.
. Robert E. Hawkins is the Associate Dean (Administration) of the Faculty of Law at the University
of Western Ontario. Robert Martin is a Professor of Law at the Faculty of Law at the University of
Western Ontario. The authors would like to thank: Roderick A. Macdonald, ER. Scott Professor of
Public and Constitutional Law, McGill University, Faculty of Law; Dean Peter F Neary, Faculty of
Social Science, University of Western Ontario; and Professor R. Kostal and Professor B. Hovius,
Faculty of Law at the University of Western Ontario, for insightful comments on an earlier draft of
this paper. We would like to thank David Adderley and Craig McTaggart who assisted with the re-
search. We would also like to acknowledge the Law Foundation of Ontario which provided assistance
in hiring research students.
McGill Law Journal 1995
Revue de droit de McGill
To be cited as: (1995) 41 McGill L. 1
Mode de r6f&ence : (1995) 41 R.D. McGill I
MCGILL LAW JOURNAL/REVUE DE DROITDE McGILL
[Vol. 41
Synopsis
I. Democracy and Judicial Review
A. Liberalism and Democracy
B. Legislators and Judges
C. Constitutional Interpretation
D. Justice Wilson’s Approach to Judicial Review
II. The Role of the Court
A. The Charter and its Effect on the Judicial Role
1.
2.
Justice Wilson’s View
a.
b.
c.
d.
e.
The Legislator’s View
Political Implications
Implications for Private Law
Certainty versus Flexibility
Equality Rights
Section 1 and the Override
m. The Contextual Approach
A. Textual and Purposive Interpretation
B. The ContextualApproach
IV. Judicial Integrity
Conclusion
1995]
R.E. HAWKINS & R. MARTIN – DEMOCRACY AND JUDGING
I. Democracy and Judicial Review
I put it to you that the main constituent of the judi-
cial process is precisely that it must be genuinely
principled, resting with respect to every step that is
involved in reaching judgment on analysis and rea-
sons quite transcending the immediate result that is
achieved. To be sure, the courts decide, or should
decide, only the case they have before them. But
must they not decide on grounds of adequate neu-
trality and generality, tested not only by the instant
application but by others that the principles imply?’
Herbert Wechsler
This essay is a critical review of the career of one Canadian judge. We argue
that this judge, Justice Bertha Wilson, failed to respect the limits which should
constrain judicial review in a democracy. Before looking in detail at the way Justice
Wilson behaved as a judge and the way she herself assessed that behaviour, it is
necessary to set out our views about liberalism and democracy and about the proper
role of judges in a liberal democracy.
A. Liberalism and Democracy
The meaning of democracy as a political principle is clear: it is the exercise of
government by the people. This straightforward notion requires some elaboration.
First, for better or worse, politics will likely continue to be organized around
the existence of nation states. When we speak of rule by the people, we mean,
therefore, rule within a particular state by citizens of that state. While aliens – per-
sons who do not belong to the state – may be denied participation in politics, the
contemporary understanding of democracy requires that no adult citizen be unrea-
sonably excluded. Unreasonable bases for exclusion would include such things as
race, sex, religion or language.
Second, it may be that a fully-democratic political system would be based on
direct or participatory politics. Unfortunately, institutional forms that would permit
direct democracy in larger societies have yet to be devised, and as a result, the most
typical democratic model involves some form of representation. Adult citizens
choose their representatives by voting at periodic elections, and those representa-
tives make the laws and have the last word on state policy. Democracy, thus, de-
mands that the votes of all citizens be equal, and that a majority of the citizens’ rep-
resentatives be constitutionally empowered to make formal and binding decisions.
This brief statement does not exhaust all the possibilities for democratic govern-
ment, nor does it seek to address ongoing debates over matters of detail, such as
whether some variant of proportional representation is preferable to a system of
‘H. Wechsler, “Toward Neutral Principles of Constitutional Law” (1959) 73 Harv. L. Rev. I at 15.
MCGILL LAW JOURNAL/REVUE DEDROiTDEMCGILL
[Vol. 41
single-member constituencies. It does, however, set out the essential formal ele-
ments that are required for a particular political system to be described as demo-
cratic.
Third, it is crucial to understand that democracy and liberalism are not the same
thing.! The distinctions and, indeed, the antinomies between democracy and liberal-
ism are at the heart of the debates over the proper role of judges within a democ-
racy and over both the desirability and the limits of judicial review.
While democracy is about majority rule, liberalism is concerned with the indi-
vidual and, in particular, the rights of the individual as against the state, that is, as
against the majority. As C.B. Macpherson has argued, the liberal-democratic state
was liberal before it became democratic. What he meant was that states had estab-
lished formal legal protection for the rights of individuals at a time when the ma-
jority of the people were still excluded from participation in their own governance.’
Indeed, Macpherson believed that the popular struggle for democracy was very
much a struggle against the liberal state.
Liberal democracy has institutionalized a permanent and irreconcilable contra-
diction: the simultaneous imperatives that, on the one hand, the claims of individu-
als be respected despite the express wishes of the majority and, on the other, that
the wishes of the majority be implemented despite those claims. Politics in liberal
democracies is largely taken up with the ceaseless, but impossible, attempt to re-
solve this contradiction or, at least, to address its most egregious manifestations.
It is normal in liberal democracies to establish rules which define in advance
how to address the various manifestations of this contradiction. This is one of the
functions of a constitution. Constitutions express the popular commitment to de-
mocracy by creating legislatures and, more to the point, by identifying them as the
primary instruments for the making of public policy. Moreover, constitutions often
limit the authority of the legislature by giving formal recognition to the rights of
individuals. Liberalism becomes a constitutional fetter on democracy just as, of
course, democracy becomes a fetter on liberalism.
Liberal-democratic constitutions normally assign the task of managing the on-
going contradiction between liberalism and democracy to the judiciary. The judi-
cial-review function, whether expressly or impliedly included in the constitution,
gives judges the last word on what is or is not constitutional. Concretely, this means
that judges have the authority to invalidate legislation. That is, they can overrule
deliberate decisions taken both by the elected representatives of the people and by
2 Ile clearest and most succinct introduction to these issues is to be found in C.B. Macpherson, The
Real World of Democracy (Oxford: Clarendon Press, 1966) [hereinafter The Real World]. See also
C.B. Macpherson, The Life and 7mes of Liberal Democracy (New York: Oxford University Press,
1977).
‘See The Real World, ibid. at c. 1.
1995]
R.E. HAWKINS & R. MARTIN – DEMOCRACY AND JUDGING
executive authorities. Interfering with legislation is the element of judicial review
that has caused the most difficulty for U.S. and Canadian commentators, in that the
act of an unelected, unaccountable judge in quashing the decision of elected, ac-
countable political representatives appears, on its face, to be anti-democratic.’ The
question, therefore, is whether judicial review is a legitimate function in a democ-
racy.
Turning briefly to the experience in the United States, the period from the mid
1880s to 1937 created real problems for proponents of judicial review. The unmis-
takable trend of democracy in those years was towards the creation of a mixed
economy, towards both the establishment of a minimal-welfare state and the limita-
tion of absolute freedom of contract in economic relations. The United States Su-
preme Court opposed this trend and was successful in resisting it for half a century,
abandoning its efforts only after the re-election of Franklin D. Roosevelt in 1936.’
Contemporary writers on the United States Constitution seem to forget this earlier
period, possibly because their thoughts about judicial review have, largely, been
shaped by Brown v. Board of Education of Topeka’ and the overwhelmingly posi-
tive response that it and subsequent decisions evoked.
It is unusual to find direct questioning of the legitimacy of judicial review on
the part of commentators in the United States.! Alexander Bickel was aware that
there was a problem but went some way towards obfuscating the anti-democratic
nature of judicial review by describing it as “counter-majoritarian”.’ Perhaps the
most influential of recent writers on the subject is J.H. Ely, who effectively finessed
the issue by arguing that judicial review is justified because it allows judges to in-
tervene to ensure that democratic institutions actually work as intended Judicial
review is seen as an essential adjunct to democracy. Even more recently, E.
Chemerinsky tried to reverse the argument by suggesting that democratic institu-
tions are not, in practice, democratic, and as a result, concerns about the anti-
democratic nature of judicial review are misconceived.”
‘See discussion, below, at text accompanying notes 7ff.
5 See the discussion in R. Martin, “The Judges and the Charter” (1984) 2 Socialist Stud. 66.
6 347 U.S. 483, 74 S. Ct 686 (1954) [hereinafter Brown]. Brown and the decisions which followed
it, especially in the areas of race relations and criminal procedure, were warmly received by intellec-
tuals in the United States and abroad. We believe that the widespread popularity of the results in
Brown and subsequent cases did a great deal to legitimate activist judicial review.
7 An interesting recent example is C.R. Massey, “The Locus of Sovereignty: Judicial Review, Legis-
lative Supremacy, and Federalism in the Constitutional Traditions of Canada and the United States”
[1990] Duke L.J. 1229.
‘ A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis:
Bobbs-Merrill, 1962) at 16.
9 See J.H. Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass.: Harvard
University Press, 1980).
‘0 See E. Chemerinsky, “Foreword: The Vanishing Constitution” (1989) 103 Harv. L. Rev. 43. The
argument that since democratic institutions are not working quite the way we wish they would, the
proper course should be to forget about them is both arrogant and defeatist. The proper response of a
democrat should be that if democratic institutions are working improperly, then we had better fix them.
MCGILL LAW JOURNAL/REVUEDEDROITDEMCGILL
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Canadians were once skeptical about judicial review. Anglophone commenta-
tors, in particular, tended to be unenthusiastic about the Judicial Committee of the
Privy Council, especially after it eviscerated R.B. Bennett’s “recovery” programme
in 1937.” The adoption of the Canadian Charter of Rights and Freedoms,’2 how-
ever, induced a profound ideological and cultural transformation. David Beatty has
produced rhapsodic prose in favour of Charter-based judicial review.” Dale Gibson
has defended the anti-democratic nature of judicial review. In one article, he praised
judges for “amending” the constitution, asserting that it did not bother him if judges
were to “bypass the democratic process”, as long as they got the answers “right”.”
There is, however, also a large and growing body of literature that has criticized the
Supreme Court of Canada for the anti-democratic fashion in which it has exercised
its authority to engage in judicial review.”
The simple conclusion is that, while judicial review may be justified on other
grounds, it is a practice which is, by its nature, anti-democratic. What, then, should
be the approach of judges within a democratic state who, we assume, are committed
to the maintenance of democracy, but who are, nonetheless, obliged to exercise the
power of judicial review? In order to answer this question, it is necessary to under-
stand the differences between legislators and judges. These differences, which mir-
ror the distinctions between democracy and liberalism, are four-fold.
B. Legislators and Judges
The first and defining difference relates to the roles assigned to legislators and
to judges by liberal-democratic constitutions under the separation of powers doc-
trine. The legislator personifies the democratic element in a liberal democracy. De-
mocracy permits the expression of what the people want, at least insofar as the leg-
islator can comprehend and support such desires. The legislator also has the pri-
mary role in the formulation of public policy.
” Much of the 1937 volume of the Canadian Bar Review was devoted to criticism of these deci-
sions (see (1937) 15 Can. Bar Rev.).
‘2 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
[hereinafter Charter].
” See D.M. Beatty, Putting the Charter to Work Designing a Constitutional Labour Code
(Montreal: McGill-Queen’s University Press, 1987).
‘4 D. Gibson, “Founding Fathers-in-Law: Judicial Amendment of the Canadian Constitution”
(1992) 55:1 Law & Contemp. Probs. 261 at note 58, p. 284.
,” The most prominent of these critics are Professor EL. Morton and Professor Rainer Knopff at the
University of Calgary. They have, jointly and individually, written a great deal about the Charter. The
fullest exposition of their views can be found in FL. Morton & R. Knopff, Charter Politics
(Scarborough: Nelson Canada, 1992). Michael Mandel of Osgoode Hall Law School is also a promi-
nent Charter critic. His most recent book, M. Mandel, The Charter of Rights and the Legalization of
Politics in Canada, rev. ed. (Toronto: Thompson Educational, 1994), attempts the, seemingly, impos-
sible feat of simultaneously being politically correct and criticizing judicial activism.
1995]
R.E. HAWKINS & R. MARTIN – DEMOCRACY AND JUDGING
The judge embodies the liberal element. This element explicitly constrains the
democratic element. The judge also acts as arbiter between a constitution’s contra-
dictory democratic and liberal tendencies. In this capacity, it is not the judge’s role
to substitute his or her policy preferences – or view of the right and the good –
for
those adopted by the legislators.
The separation of powers doctrine maintains the distinction between the legis-
lative and judicial roles. It ensures that the elected, accountable organs of the state
have the stewardship of the democratic principle, and that the unelected, unac-
countable organ –
has the stewardship of the liberal principle.
Even more important, however, it ensures that none of these organs interferes with
the work of the others.
the judiciary –
Now it is true that, because Canada is a parliamentary democracy, its Constitu-
tion”‘ does not fully recognize the separation of powers. This does not mean, how-
ever, that the principle is foreign or unknown to its Constitution.” It has long been
accepted that the Canadian Constitution contains a limited separation of powers
doctrine, one that protects the integrity of the judicial function. That is, the legisla-
ture’s ability to remove decision-making functions from the judiciary and vest them
in non-curial bodies is limited. The Constitution prohibits the legislature from arro-
gating to itself the functions of the judiciary. But just as the legislature must respect
the integrity of the judiciary, the separation of powers doctrine also demands that
the judiciary respect the integrity of the legislature.’8
The second difference between legislators and judges has to do with the way
they attain and maintain their offices. Both the selection processes and the rules
about their tenures differ. With respect to selection, any adult citizen in a democ-
racy will normally be entitled to stand as a candidate for election to the legislature.
No special education or training is required; there is no formal, institutional
screening of candidates before they present themselves to the people. By contrast,
not every citizen is, on the usual model, entitled to become a judge. Employment in
the judiciary is reserved for lawyers. Furthermore, except in a minority of jurisdic-
tions in the United States, the people are excluded from direct participation in the
selection of judges. Judges may be selected by political figures or by more or less
independent bodies, but the people themselves do not take part in the process.
16 Constitution Act, 1867 (U.K), 30 & 31 Vict., c. 3; Constitution Act (No. 2), 1975, S.C. 1974-75-
76, c. 53; Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
[hereinafter Constitution].
” See Reference Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, 123 D.L.R. (3d) 554,
Dickson J.
” Supreme Court of Canada judges have, from time to time, been prepared to concede this much
(see e.g. Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, 83 D.L.R. (4th) 297,
Sopinka J.).
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
[Vol. 41
With respect to tenure, legislators are directly accountable to the people. They
know that after a specified period in office they will have to face the people to be
re-elected. Judges are guaranteed their office until they reach a specified retirement
age. It is true that judges can be removed from office if they fail to meet the stan-
dards of behaviour expected of them. These standards demand that judges observe
certain norms of personal and professional probity; they do not, however, demand
that judges account for the substance of their decisions in particular cases. As a
matter of principle, and as a matter of definition, judges are not to be accountable to
anyone.
The third difference between legislators and judges relates to temperament. The
judiciary must always be conscious of the role it is playing and, especially, of the
anti-democratic elements of that role. This requires that judicial review be under-
taken with modesty, dispassion and circumspection. These attitudes are less neces-
sary in a legislator. The judge must strive to foresake political power in order to ex-
ercise judicial power within the constraints of the law. Justice Frankfurter described
the judicial temperament in the following words:
“To practice the requisite detachment and to achieve sufficient objectivity no
doubt demands of judges the habit of self-discipline and self-criticism, incerti-
tude that one’s own views are incontestable and alert tolerance toward views
not shared. But these are precisely the presuppositions of our judicial process.
They are precisely the qualities society has a right to expect from those en-
trusted with … judicial power.””
Fourth, there is a fundamental difference between the ways by which legislators
and judges reason and make decisions. The legislator is assumed to make expressly
political decisions; that is, to base decisions on such things as the wishes of con-
stituents, the policies of the party and one’s own subjective views as to what is so-
cially desirable. This is not the way we expect judges to make decisions. Rather, we
assume that the primary element in any judicial decision is the law. It may well be
that the law is uncertain or contradictory; nevertheless, it is widely understood that
judicial decision-making must involve an effort to reach conclusions on the basis of
established principles, rather than through public opinion polls, party policy or
some other set of purely subjective criteria. However it is to be formulated, there
must be a distinction between the way legislators make decisions and the way
judges make distinctions. If there is no such distinction, why bother having judges?
This difference in approaches to decision-making finds outward expression in
the different justifications used by legislators and judges for their decisions. The
legislator acts because he or she has become convinced that a particular policy is
wise or desirable. He or she argues: “This policy, in my opinion or in my party’s
opinion, is wise or good;” or “This is what my constituents wanted;” or “I have
” Quoted in L.R. Yankwich, “The Art of Being a Judge” in G.R. Winters, ed., Handbook for
Judges: An Anthology of Inspirational and Educational Writings for Members of the Judiciary
(Chicago: American Judicature Society, 1975) 3 at 4.
1995]
R.E. HAWKINS & R. MARTIN – DEMOCRACYAND JUDGING
done what is best for the country.” The judge, however, is not entitled to act on
these bases; the constitution constrains him or her. Interference with the democratic
principle by judges can only be justified on the ground that it is necessary to ensure
continued observance of the constitution. The judge may only intervene when he or
she is satisfied that the state’s political organs have failed to act in conformity with
overriding constitutional principles. The judge reasons, “I have done what I have
done because that is what the constitution’s principles, as I understand and interpret
them, require.”
In a democracy, judicial review must be principled. Principled judging is the
opposite of ad hoc, result-oriented judging. The outcome of the case must transcend
the personal characteristics of the litigants, the specific context of the particular
facts and the subjective preferences of the judge in light of those characteristics and
that context. The reasoning underlying the decision must be susceptible to generali-
zation.
To maintain neutrality, the relevant principle must originate in a source external
to the judge. One such source is statute law, the other is common law. The Canadian
Constitution is a statute; while there is a residual common law of the Constitution,
that common law cannot be applied to contradict directly the Constitutional text.”0
In looking for the principle contained in a statute, including a constitution, a judge’s
law-making role is, therefore, constrained by the statute’s text, its purpose and its
historical development. The framework is given; the judge fills in the details.
In a democracy, the legitimate exercise of the power of judicial review by
unelected, unaccountable judges depends on the principled exercise of that power.
A judge in a democracy can only properly declare unconstitutional a law passed by
the legislature on the basis of a principle that has its source in the constitution. The
judge interprets the constitution in order to define the principle and, then, applies
the principle in order to determine whether the effect created by the challenged
legislation violates the constitution. Subject to certain special rules of statutory in-
terpretation, the process is similar to the one a judge follows in interpreting an or-
dinary piece of legislation and applying it to a particular set of facts.’
20 Constitutional conventions, which evolve in common law-like fashion, have moral force, if not
legal force (see Reference Re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753, (sub norm.
Reference Re Amendment of the Constitution of Canada (Nos. 1, 2 and 3) 125 D.L.R. (3d) 1; New
Brunmvick Broadcasting Co. v. Speaker of the House of Assembly (N.S.), [1993] 1 S.C.R. 319, 100
D.L.R. (4th) 212).
22 The process is not as linear as this description makes it seem. J.A. Cony wrote that the judge si-
multaneously thinks of the statute in relation to the facts, and the facts inevitably colour that interpre-
tation of the statute. Cony wrote that “[i]n considering his decision, [the judge] goes back and forth
from facts to statute and from statute to facts, and the processes of interpretation and application are
telescoped together in a manner which defies separation” (J.A. Cony, “Administrative Law and the
Interpretation of Statutes” (1936) 1 U.T.L.J. 286 at 291). This does not mean that the statute has no
import. The words of a statute always set limits beyond which it cannot be extended or restricted by a
judge acting in good faith (see ibid. at 291-92).
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[Vol. 41
C. Constitutional Interpretation
The traditional rules of statutory interpretation are well known, although their
application in particular cases may be controversial.” One starts with the words of
the enactment; if those words can be given an ordinary or plain meaning which is
applicable to the facts at hand, that is done. Usually, that is not enough. If ambigui-
ties remain, one looks to the purpose the statute was intended to achieve (that is, the
good sought or the evil to be remedied), the scheme of the act and the legislative
history of the enactment. Two judges may disagree on the outcome. What matters,
however, is that the disagreement must be premised on something other than the
judge’s personal preference as to who should win the case.
Constitutions are to be given a “large and liberal” interpretation as opposed to a
“cramped and legalistic” one. This means that constitutional provisions are to be
interpreted in light of their purpose. That purpose must be applied over a wide
range of circumstances and a long period of time. There is nothing unusual about
this interpretive principle: the same “canon of construction” applies when interpret-
ing remedial legislation. ‘ A large and liberal interpretation, however, does not give
a judge licence to read purposes into a constitutional provision that were never in-
tended when the provision was adopted. Justice Dickson argued in R. v. Big M
Drug Mart Ltd.” for a large and liberal interpretation of the Charter, one which
recognized the purpose the particular guarantee was intended to fulfil. “At the same
time,” he stated, “it is important not to overshoot the actual purpose of the right or
freedom in question, but to recall that the Charter was not enacted in a vacuum, and
must therefore … be placed in its proper linguistic, philosophic and historical con-
texts.”‘
Mr. Justice McIntyre, in Reference Re Public Service Employee Relations Act
(Alta.), 6 stated that the interpretation of the Charter was constrained by the lan-
22See PW. Hogg, Constitutional Law of Canada, 3rd ed. (Scarborough: Carswell, 1992) at 403-16,
809-28, 1283-297. Madam Justice Wilson set out these rules for herself:
The search for the true meaning of ordinary legislation was prior to the Charter neces-
sarily the search for the intention of Parliament in passing it [sic]. Whether you applied
the plain meaning rule, the mischief rule, the statutory presumptions or the scheme of
the Act approach, the objective was always the same –
to identify what Parliament
intended by the words it used-because that intention represented the true meaning of
the legislation (3. Wilson, “Statutory Interpretation: The Use of Extrinsic Evidence Pre
and Post Charter” (Paper delivered at the Commonwealth Law Conference, New Zea-
land, April 1990) [hereinafter “Extrinsic Evidence”] in Speeches Delivered by the
Honourable Bertha Wilson: 1976-1991 (Ottawa: Supreme Court of Canada, 1992) 639
at 641 [hereinafter Speeches]).
Interpretation Act, R.S.C. 1985, c. 1-21, s. 12.
24 [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321 [hereinafter Big M cited to S.C.R.].
‘Ibid at 344.
26 [1987] 1 S.C.R. 313, 38 D.L.R. (4th) 161 [hereinafter Re Public Service Employee cited to
S.C.R.I.
1995]
R.E. HAWKINS & R. MARTIN – DEMOCRACYAND JUDGING
guage, structure and history of the Constitutional text, by constitutional tradition,
and by the history, traditions and philosophies of our society. In R. v. Morgentaler,27
he stated:
I take this [purposive approach] to mean that the Courts should interpret the
Charter in a manner calculated to give effect to its provisions, not to the idio-
syncratic view of the judge who is writing. This approach marks out the limits
of appropriate Charter adjudication. It confines the content of Charter guaran-
teed rights and freedoms to the purposes given expression in the Charter. Con-
sequently, while the Courts must continue to give a fair, large and liberal con-
struction to the Charter provisions, this approach prevents the Court from
abandoning its traditional adjudicatory function in order to formulate its own
conclusions on questions of public policy, a step which this Court has said on
numerous occasions it must not take.’
If a judge concludes that a statute does not govern the fact situation in issue, the
judging exercise ends. The judge does not have the authority to extend the statutory
principle, through judicial amendment, to cover situations that the judge thinks the
elected representatives ought to have or might have included in the statute. If a
statute stipulates that mechanics’ liens can only be registered against public dwell-
ings, it is not open to a judge to expand that principle to permit a lien to be regis-
tered against a private cottage, simply because the judge thinks the legislation is too
restrictive. Similarly, if the Constitution does not guarantee the right to purchase
contraceptives, it should not be open to a judge to write such a provision into the
Constitution by inventing a right to privacy which the Constitution does not contain
or by contorting a right, such as the right to liberty, which the Canadian Constitu-
tion does contain. The words of the Constitution can be given a principled defini-
tion based on the common understanding of those words when they were adopted,
on the scheme of the Constitution and on the purpose for which those words were
included in the Constitution. The words should not be defined on the basis of a
subjective meaning which the judge wishes they had.2′
We reject the deconstructionist view that texts do not, and cannot, have meaning. A
well-known deconstnmctionist aphorism holds that the works of Shakespeare have no
more inherent meaning than the New York City telephone directory. Like most decon-
structionist thought, this view disregards concrete human experience. Literature students
do not, in fact, study the New York City telephone directory. More to the point, in the
early 1980s, when the entire country was engaged in debate over constitutional amend-
ment, the central issue was the precise words that should go into our Constitution.”
27 [1988] 1 S.C.R. 30,44 D.L.R. (4th) 385 [hereinafter Morgentaler cited to S.C.R.].
2
1 Ibid at 140.
“In considering the purpose of constitutional guarantees, it is useful to recollect Mr. Justice
Strayer’s observation that “the Charter was not intended to guarantee good government in all its as-
pects … There was no presumption created that every wrong must find a remedy in the Charter” (B.L.
Strayer, “Life Under the Canadian Charter Adjusting the Balance Between Legislatures and Courts”
(1988) Pub. L. 347 at 352).
‘0 See ibidL
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D. Justice Wilson’s Approach to Judicial Review
Where does Justice Wilson’s approach to judging fit within our theory? For ju-
dicial review to be acceptable in a democracy, it must be based on a principle that is
external to the will of the judge; for it to be constitutional, it must be based on a
principle that is contained in the constitution; for it to be honest, it must be based on
a fair reading of the words chosen by the elected representatives who adopted the
constitution. On one occasion, at any rate, Justice Wilson believed these assertions
to be true. In speeches delivered in Windsor, Canada and Edinburgh, Scotland, she
said:
As Canadian judges we are appointed, not elected, officials. There would be
something deeply illegitimate about our forays into judicial review of legisla-
tion if all there was to them was a desire to substitute our own personal values
for those of our duly elected representatives.
We cannot placidly assume that by some mysterious process we, the
judges, have been given access to the true answers to fundamental social and
political dilemmas. If anything, the converse may be true. ….
While things are slowly changing, it cannot be said that judges in Canada
are broadly representative of the general public. There is, therefore, no plausi-
ble justification for us to substitute our personal values and our moral choices
for those of the elected legislature. The metaphor of the living tree is a harmless
one so long as it is used merely to suggest that a constitution must adapt and
grow to meet modem realities. It could, however, become dangerous and anti-
democratic if it were used to justify the shaping of the constitution according to
the personal values of individual judges.”
The difficulty is that this does not reflect Justice Wilson’s practice of judicial
review either before or after these speeches were given. In Morgentaler, released
two and one-half months prior to the above-quoted speech, Justice Wilson held that
the Criminal Code” provisions restricting abortion should be struck down as of-
fending substantive, fundamental justice and the Charter’s guarantees of personal
liberty and freedom of religion and conscience. As will be shown below, this deci-
sion reflects Justice Wilson’s personal views rather than a principled approach to
constitutional adjudication.
In her nine years on the Supreme Court of Canada (1982-1991), Justice Wilson
wrote over fifty major Charter decisions and made over sixty public speeches. This
paper could not have been written without the speeches. They provide a kind of
‘ B. Wilson, “The Making of a Constitution” (Public Lecture on the Charter of Rights and Free-
doms, Windsor, Canada, 12 April 1988) in Speeches, supra note 22, 527 at 538-39. See also
B. Wilson, “The Making of a Constitution: Approaches to Judicial Interpretation” (Paper delivered at
a Seminar on “Constitutional Protection of Human Rights – The Canadian Experience Since 1982”
at the University of Edinburgh, Scotland, 20-21 May 1988) in Speeches, supra note 22, 549 at 562-63
[hereinafter “Making of a Constitution”].
2R.S.C. 1985, c: C-46 [hereinafter Criminal Code].
1995]
R.E. HAWKINS & R. MARTIN – DEMOCRACYAND JUDGING
Rosetta Stone for understanding her judgments. This paper will examine the theory
and practice of judicial review adopted by Justice Wilson in these judgments and
speeches. We will consider: her understanding of the role of the post-Charter
Court; the “contextual approach” that she devised for constitutional interpretation;
and her view of the judge as a representative for certain groups. We will argue that
she used judicial review as a vehicle for promoting her personal, ideological
agenda. In so doing, she became the most political Supreme Court judge in Cana-
dian history. She did not simply transgress the boundaries that restrain the behav-
iour of judges in a liberal democracy, she denied their existence.
H. The Role of the Court
And so judges fearfor the survival of passionately
held presuppositions of their own and wish to pre-
serve them for the ages in the deathless body of the
Constitution.
Alexander Bickel
A. The Charter and its Effect on the Judicial Role
1.
Justice Wilson’s View
Justice Wilson argued that the Charter created a new role for the courts?’ It
“dealt a body blow” to the idea of Parliamentary sovereignty” and cast “the judici-
ary in a clearly interventionist role”.” She explained:
3 Bickel, supra note 8 at 98.
See: B. Wilson, “Guaranteed Freedoms in a Free and Democratic Society – A New Role for the
Courts?” (Address to the 22nd Australian Legal Convention, Brisbane, Australia, July 1983) in
Speeches, supra note 22, 99 at 119; B. Wilson, “Guaranteed Freedoms in a Free and Democratic So-
ciety – A New Role for the Courts?” (Address to the Carleton University Faculty Club, Ottawa,
Canada, 2 February 1984) in Speeches, ibid 155 at 156ff [hereinafter “New Role for the Courts”]; B.
Wilson, “The Charter of Rights and Freedoms” (Address to the Student Body, University of British
Columbia Law School, Vancouver, Canada, September 1984) in Speeches, ibid 187 at 188ff;
B. Wilson, Legislative Notes, “The Charter of Rights and Freedoms” (Address to the Student Body,
College of Law, University of Saskatchewan, 12 November 1984) (1985) 50 Sask. L. Rev. 169
[hereinafter “The Charter (U. of S.)”]; B. Wilson, “The Charter of Rights and Freedoms” (Address to
University of Calgary Law School, Calgary, Canada, March 1985) in Speeches, supra note 22, 331 at
332ff; B. Wilson, “Decision-Making in the Supreme Court” (David B. Goodman Memorial Lecture
delivered at the University of Toronto, 26 & 27 November 1985) (1986) 36 U.T.L.J. 227 [hereinafter
“Decision-Making”]; “Extrinsic Evidence” in Speeches, supra note 22 at 641.
” “The Charter (U. of S.)”, ibid at 171. See also “Extrinsic Evidence” in Speeches, where Justice
Wilson wrote that Charter review “strikes at the very root of the doctrine of parliamentary sover-
eignty …” (ibid. at 642).
36″Decision-Making”, supra note 34 at 238.
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We can no longer rely on the doctrine of the supremacy of Parliament as a rea-
son for staying our hand. We have to examine any impugned legislation to see
whether it interferes with the fundamental rights of the citizen and, if it does,
strike it down….
I think the conclusion is inescapable that the scope of judicial review of
legislative and executive acts has been vastly expanded under the Charter and
that, indeed, the courts have become mediators between the state and the indi-
vidual.3 7
I think that the new role under the Charter represents a fundamental reor-
dering of the political balance of power. … The judicial role under the Charter
… has, in my opinion, effected a major change in the relationship between the
three branches of government. It challenges the right of government to enact
certain laws at all and makes the courts the watchdogs over the rights of citi-
zen.3
Justice Wilson rejected the notion that judicial review of alleged Charter viola-
tions should follow the model of review created by division of powers jurispru-
dence. At a 1988 conference in Edinburgh, Scotland, Barry L. Strayer, now a judge
of the Federal Court of Canada but Assistant Deputy Minister of Justice at the time
the Charter was written, suggested that the principle of Parliamentary supremacy
had been limited in Canada since pre-Confederation. Even then, the laws of any
Canadian legislative body could be invalidated if they were inconsistent with an
applicable imperial law or Order-in-Council. Seen thus, the Charter was not a radi-
cal break but, rather, a development along a “continuum of judicial review”.” Jus-
tice Wilson, who spoke at the same conference, abruptly rejected this idea:
Is there a significant difference between the Court’s role prior to and after the
Charter? Unlike Justice Strayer, I believe there is. … Striking down legislation
because it was enacted by the wrong level of government was not in any way
at variance with the theory of representative government as such; the legisla-
tion had simply been enacted by the wrong set of representatives. The [C]ourt’s
role under the Charter, however, seems to me to be different in kind. It is at
variance with the theory of representative government. It challenges the right
of government to enact certain laws at all. This strikes at the very root of the
doctrine of parliamentary supremacy.’o
37 Ibi. at 238-39.
“8 Ibi. at 240. See also: “The Charter (U.of S.)”, supra note 34 at 170-72; “Extrinsic Evidence” in
Speeches, supra note 22 at 641-42.
39 Strayer, supra note 29 at 348-54. Strayer was instrumental in negotiating the inclusion of the
Charter in the Constitution. His paper was originally presented at a seminar at the University of Ed-
inburgh, in May, 1988 on “Constitutional Protection of Human Rights -The Canadian Experience
Since 1982”.
,* “Making of a Constitution” in Speeches, supra note 22 at 551-52. Query whether, when looked at
from the point of view of the disempowered legislative body, the result of striking down legislation
for division of powers reasons as opposed to Charter reasons is not the same. Does it follow that the
method of judicial review should be different?
1995]
R.E. HAWKINS & R. MARTIN – DEMOCRACYAND JUDGING
Justice Wilson also rejected the idea that the role of the Court in applying the
Charter could be analogized to the role of the Court in applying statute law. She
saw the traditional approach to construing statutes as a technical, legalistic exer-
cise.” The organizing principle underlying the traditional rules of statutory interpre-
rules aimed at identifying the intention of Parliament – was the doctrine
tation –
of Parliamentary supremacy. According to Justice Wilson, the introduction of the
Charter meant that this doctrine was no longer appropriate. Instead, all that mat-
tered was the effect that the challenged legislation had on the guaranteed rights of
citizens. 2 She, thus, expressly repudiated the democratic principle in favour of the
liberal principle.
Further, Justice Wilson believed the language of the Charter –
in particular,
words like “liberty”, “equality”, “fundamental justice” and “free and democratic
society” – was too imprecise, too open-textured to be approached in the same way
as words found in most other statutes. She found the Charter remarkable for “its re-
Instead,
fusal to present a sharply etched picture of the draughtsman’s intentions.”
Charter words were broad and flexible so as to “accommodate and respond to so-
cial change”.” Thus, ordinary statutory interpretation would not do; an approach
‘ To
was needed that would “leave [the courts] room to manoeuvre in the future”.4
those who worried that the courts’ treatment of the broad language of the Charter
risked transforming the judiciary into a super-legislature adjudicating on the merits
of public policy beyond the reach of any parliament, Justice Wilson replied that the
critics had simply failed to understand the new judicial role.’
4
“See “Extrinsic Evidence” in Speeches, ibid at 645.
2 See ibid. at 641.
4′ Ibid at 643.
“Ibid
“Ibid at 646.
46 B. Wilson, “Constitutional Law –
Section 7” (Lecture given at College of Law, University of
Saskatchewan, Saskatoon, Canada, March 1987) in Speeches, ibid 447 at 449. Concern had been ex-
pressed about the Court’s broad interpretation of the phrase “fundamental justice” in section 7 of the
Charter. The Court’s interpretation expressly disregarded the common understanding of those words,
an understanding held by all informed persons at the time the Charter was negotiated. That Wilson
saw a difference between statutory interpretation and Charter interpretation is evident from the fol-
lowing statement:
The principle of parliamentary sovereignty must clearly act as a curb upon what we
might call too creative an approach to the interpretation of ordinary statutes. There is
obviously a point at which interpretation becomes legislation and the legitimate func-
tion of Parliament is usurped. While this may be acceptable in Charter interpretation
where the judiciary has been expressly made the custodian of the citizens’ rights, it
clearly is not acceptable in the case of the interpretation of ordinary statutes where the
will of Parliament must prevail (“Extrinsic Evidence” in Speeches, ibid at 653).
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Nor did the common-law method provide a useful model for Justice Wilson.4
,
The problem was precisely the lack of precedent. Given the novelty of the Charter,
“[the judiciary’s] concern must be with the creation of precedent rather than [with]
the application of it.”‘ Where precedent existed, it could be “viewed as an ultimate
formulation of pure principle independent of context, or it [could] be seen as
merely a useful mechani[sm] for marshalling past experience for present choice.”‘”
Where the context of the case differed from the one in which the precedent devel-
oped, Justice Wilson felt the judge was free to disregard the precedent in favour of
a result more attuned to his or her personal view of what was “right and fair”.”
If the Court’s old role was inadequate, what was its new role to be? We believe
that for Justice Wilson, the Charter was an Order of Mandamus issued by the High
Court of Parliament directing the judges of the Supreme Court to write a constitu-
tion for the country. It was a kind of “anti-grundnorm” –
a book of blank pages:
[W]hile the constitutional document is static, the Constitution is dynamic and is
progressively shaped as judges apply deeply contestable conceptions of rights
to particular, and sometimes peculiar, facts. Thus, the Constitution is always
unfinished and is always evolving. Ronald Dworkin likens constitutional inter-
pretation to the writing of a “chain novel” where each successive judge pro-
duces a chapter. Each judge is constrained to a degree by what has gone on be-
fore but at the same time is obliged to make the novel the best that it can be.”‘
The judge was not to be the guardian of the Constitution but, rather, its author.
Justice Wilson stated this view repeatedly. At the end of her time on the bench,
she told a group of lawyers that the Court was “to develop the meaning and content
of Charter rights and guarantees”. 2 She continued:
Ultimately, judges must make fundamental choices about what the Constitution
is or is not to protect. In other words, judges must decide which values in our
society are so important that we must both protect and promote them under our
Constitution.”
“There is a nuance here. As will be discussed below, Justice Wilson was interested in the judge’s
policy-making function at common law.
,”The Charter (U. of S.)”, supra note 34 at 173.
49 “Decision-Making”, supra note 34 at 233.
0 Ibid. at 23 1.
” “Making of a Constitution” in Speeches, supra note 22 at 554. The opposite view was expressed
by Justice McIntyre in Re Public Service Employee where he said, “Mhe Charter should not be re-
garded as an empty vessel to be filled with whatever meaning we might wish from time to time”
(supra note 26 at 394).
2 B. Wilson, “Constitutional Advocacy” (Address to The Briars, Toronto, 2 June 1991) (1992) 24
Ottawa L. Rev. 265 at 270.
53 Ibid
1995]
R.E. HAWKINS & R. MARTIN – DEMOCRACYAND JUDGING
She spoke of the “substantial new power and responsibility”‘ given to the Su-
preme Court of Canada in the following terms:
The challenge for the courts then is to develop norms against which the reason-
ableness of the impairment of a person’s rights can be measured in a vast vari-
ety of different contexts. Could there be a broader mandate for judicial crea-
tivity? …
The Court must, it seems to me, develop some kind of balance between the
fundamental freedoms of the citizens on the one hand and the right and obliga-
tions of democratically elected governments to govern on the other.5
Justice Wilson did not accept the idea that the Charter could be interpreted in a
principled way independent of the subjective value choices of the judge deciding
the case. As her speeches indicate, Justice Wilson felt that judges were to give
content to the Charter by deciding which values were to be constitutionalized.
When she spoke of “values”, we believe she meant subjective preferences and not
established principles external to judges. Nowhere, for example, do any of our
constitutional texts refer to “values”. She may have been influenced by a work that
she cited on several occasions: John Rawls’ A Theory of Justice.’ In our reading of
Rawls, when he uses the word “values” he means subjective preferences. He re-
gards choices about values as analogous to the choices that consumers make in the
marketplace. In abandoning principles in favour of subjective value choices, Justice
Wilson expressly mandated for judges an anti-democratic, constitution-writing role.
There is a temporal element to this. The content of legislation –
the purpose
for which it is adopted –
is fixed at the moment of its adoption. Justice Wilson felt,
however, that the content of the Charter was in a state of constant change. “The
scope of the right,” she stated, “must be continually reassessed in light of changing
social circumstances and contemporary social theory.”‘ 7 Legislatures do not con-
tinually rewrite laws. For Justice Wilson, therefore, the judge had to perform that
task; the judge had to legislate.
a.
Political Implications
Justice Wilson did not approach constitutional interpretation with restraint but with
relish. In Operation Dismantle v. R.,” she went out of her way to reject the idea that
“political questions” were beyond the scope of the judiciary’s domain. The political
‘4 “The Charter (U. of S.)”, supra note 34 at 172.
“Ibid at 171-72. See also “Extrinsic Evidence” in Speeches, supra note 22 at 646-47.
56J. Rawls, A Theory of Justice (Cambridge, Mass.: Belknap Press, 1971).
“”Making of a Constitution” in Speeches, supra note 22 at 567.
5[1985] 1 S.C.R 441, 18 D.L.R. (4th) 481 [hereinafter Operiation Dismantle cited to S.C.R.].
The principal allegation in the plaintiff’s Statement of Claim was that the testing of cruise missiles
in Canada posed a threat to the lives and security of Canadians. The testing was said to increase the
risk of nuclear conflict and, thus, to violate the section 7 “security of the person” guarantee. The gov-
ernment sought to have the Statement of Claim struck out as disclosing no cause of action. The ma-
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questions doctrine holds that certain issues, because of their relation to public policy,
raise moral and political questions beyond the purview of the courts.’ Justice Wilson
maintained not only that the Court could decide such questions, but that in the Charter
era it had a duty to do so.” No issue was to be outside the scope of judicial review.
jority of the Court struck out the Statement of Claim on the basis that the allegations “could never be
proven”. Justice Wilson rejected this approach, an approach which would have left for another day
the issue of whether or not a political-questions doctrine existed in Charter litigation. She pointed out
that on this kind of motion the facts must be taken as having been proven (Operation Dismantle, ibid.
at 464). Chief Justice Dickson, writing for the majority, had no problem dismissing Justice Wilson’s
technical point: “No violence is done to the rule [that facts must be taken as proven] where allega-
tions, incapable of proof, are not taken as proven” (ibid. at 455). Of course, this means that Justice
Wilson’s rejection of the political-questions doctrine in Operation Dismantle is obiter and will have to
be reconsidered by the Court.
0 The concept of non-justiciability is not restricted simply to the idea that our courts are institu-
tionally incapable of dealing with certain issues because of difficulties of evidence and proof (the
grounds relied upon by the majority in Operation Dismantle). Non-justiciability, in a wider sense,
suggests that it is institutionally inappropriate for courts to deal with certain issues of a political na-
ture. Lord Radcliffe’s observations are helpful on this point:
The more one looks at it, the plainer it becomes, I think, that the question whether it is
in the true interests of this country to acquire, retain or house nuclear armaments de-
pends on an infinity of considerations, military and diplomatic, technical, psychologi-
cal and moral, and of decisions, tentative or final, which are themselves part assess-
ments of fact and part expectations and hopes. I do not think that there is anything
amiss with a legal ruling that does not make this issue a matter for judge or jury
(Chandler v. Director of Public Prosecutions, [1962] 3 W.L.R. 694 at 712, 3 All E.R.
142 (H.L.)).
See Operation Dismantle, supra note 58 at 467. Section 52 of the Charter states that the Consti-
tution is the supreme law of Canada, and that any law that is inconsistent with the provisions of the
Constitution is, to the extent of that inconsistency, of no force and effect. This section authorizes ju-
dicial review but does not require it. Moreover, nothing in this section authorizes judicial review
where judicial review would require judges to decide questions not properly within their domain un-
der separation of powers theory or that are unsuited to judicial review, because any outcome would
simply be an exercise in judicial ad hoc decision-making.
The argument which says that judges have a duty, in all cases, not to permit unconstitutional
laws or executive acts to stand is superficially attractive. It goes to the merits of the case. However, it
is legitimate for the Court to refuse to reach the merits of the case, even in a Constitutional case,
where other principles so dictate. The doctrines of ripeness and mootness are examples of this. Justice
Wilson accepted this in other contexts. In a 1991 speech she made the following statement:
If the required material is not in the record, this will be a very important factor in the
decision whether or not to grant leave. The necessary evidentiary base is often absent
when the Charter issue has not been raised at trial but is raised only at the Court of
Appeal stage or in some cases only when the matter comes from a grant of leave to the
Supreme Court of Canada. Leave in these cases is frequently denied on the ground that
the issue is bound to arise again when the Court will have a better record on which to
proceed (“Constitutional Advocacy”, supra note 52 at 267).
This is all part of the idea that it is sometimes necessary for the Court to “stay its hand” or “do
nothing” in order not to exacerbate the undemocratic nature of judicial review. Alexander Bickel dis-
cusses this under the heading, “The Passive Vimues” (supra note 8 at c. 4). Justice Wilson clearly felt
uneasy with this notion of self-restraint See also R.H. Bork, The Tempting of America: The Political
19951
R.E. HAWKINS & R. MARTIN – DEMOCRACYAND JUDGING
In our opinion, if judges are empowered by the Charter to create constitutional
norms, as Justice Wilson argues, the judicial function and the legislative function
become indistinguishable. Under such circumstances, it no longer makes sense to
say that certain kinds of questions are out of bounds to the judiciary simply because
their political nature reserves them for the political authorities. Indeed, Justice
Wilson’s view of the courts’ role under the Charter sounds the death knell for the
doctrine of separation of powers.
b.
Implications for Private Law
In Justice Wilson’s view, the Charter gave judges power to adjudicate not only
on a broad range of political issues but over a broad range of private activities as
well. Section 32(1) makes the Charter applicable to “the Parliament and govern-
ment of Canada” and to “the legislature and government of each province”. ‘ In
McKinney v. University of Guelph’ and in Stoffman v. Vancouver General Hospi-
tal,’ a majority of the Supreme Court held that the Charter does not apply to pri-
vate institutions, such as universities or hospitals. Justice LaForest, writing for the
majority in McKinney, and following the Court’s decision on this point in
R.W.D.S.U. v. Dolphin Delivery Ltd.,” relied on the clear words of section 32, the
deliberate legislative choice to exclude private activity from Charter review. He
also used the historical development of Human Rights Commissions as the basis for
restricting the application of the Charter to the actions of the legislative, executive
and administrative branches of the state. ‘ The majority distinguished between state
activity and private activity, between the activities of private individuals or organi-
zations and tasks either assigned to government or engaging governmental respon-
sibility.”7
By contrast, Justice Wilson, in dissent, rejected the view that “the Charter ap-
plies only to government in its narrowest sense.”‘ She set out three questions to
determine what constitutes government action: the control question; the govern-
Seduction of the Law (New York: Free Press, 1990).
“Section 32(1) of the Charter reads as follows:
This Charter applies
a)
to the Parliament and government of Canada in respect of all matters within the
authority of Parliament including all matters relating to the Yukon territory and
Northwest Territories; and
to the legislature and government of each province in respect of all matters within
the authority of the legislature of each province (supra note 12).
b)
63 [1990] 3 S.C.R. 229,76 D.L.R. (4th) 545 [hereinafter McKinney cited to S.C.R.].
64 [1990] 3 S.C.R. 483,76 D.L.R. (4th) 700 [hereinafter Stoffman cited to S.C.R.].
65 [1986] 2 S.C.R. 573,33 D.L.R. (4th) 174.
“See McKinney, supra note 63 at 261-65.
67 See ibid. at 266.
“/Ibid at 342.
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ment function question; and the government entity question.’ She then treated the
various questions as “practical guidelines” which might, or might not, influence her
decision in an individual case.’ So long as the activity in question qualified under
one of these questions, even if it did not qualify under any of the others, the Char-
ter would apply. She indicated that her three questions were not “carved in stone”
but must evolve as governments “enter or withdraw from different fields.”” It
would always be open to the parties to argue and to a judge to decide that a body
was “self-evidently” part of government for the purpose of Charter application.”‘
From Justice Wilson’s reasons, it is difficult to see what, if anything, might
limit the scope of judicial discretion in deciding what could qualify as government
action. Too many questions, sometimes asked, sometimes not, add up to a rejection
of principled decision-making. Justice Wilson was interpreting the scope of Charter
application on an ad hoc basis. The role of the Court, it seems, was not only to de-
vise Charter norms but also to decide to which activities the Charter should apply.
Judicial will –
and not legislative will – would determine both the content and the
scope of the Charter.
Justice Wilson argued that, to the extent the Court was unsuited to its new role,
it would have to change. She noted that public concern about the legitimacy of an
expanded judicial role was becoming manifest in greater public interest in the proc-
ess of judicial appointments.’ Moreover, she saw the quartet of Supreme Court de-
cisions dealing with standing” as a logical culmination of the tacit acceptance of
judicial review.75 Justice Wilson argued that liberalized rules governing intervention
before the courts by a broad range of individuals and interest groups that are not
actually parties to the dispute would legitimate the courts’ new role: “If constitu-
tional decisions have ramifications for a broad range of interests and involve dis-
tinct choices between conflicting social policies, then we must devise some way of
bringing those interests before the Court.”‘ Seemingly, the courts were to become
not only a legislative forum, but a forum for public debate as well. She wondered
whether the introduction, in 1976, of the process requiring leave to appeal to the
Supreme Court was meant to presage an increase in the Court’s law-making power:
“In dealing with matters of ‘public importance’ are we to become policy-makers as
well as adjudicators?” she asked.’
‘ See ibiaL at 359-71.
70 Ibid at 370-7 1.
72 Ibid at 371.
72 Ibid
73 “Decision-Making”, supra note 34 at 239.
, See Thorson v. Canada (A.G.) (1974), [1975] 1 S.C.R. 138, 43 D.L.R. (3d) 1; Canada (Minister
of Justice) v. Borowski, [1981] 2 S.C.R. 575, [1982] 1 W.W.R. 97; Finlay v. Canada (Minister of Fi-
nance), [1986] 2 S.C.R. 607, [1987] 1 W.W.R. 603; MacNeil v. Nova Scotia (Board of Censors),
[1976] 2 S.C.R. 265, 12 N.S.R. (2d) 85.
7 See McKinney, supra note 63 at 371.
76Ibid at 242.
7B. Wilson, “Leave to Appeal to the Supreme Court of Canada” (Address delivered at the Law-
1995]
R.E. HAWKINS & R. MARTIN – DEMOCRACYAND JUDGING
If the Court were to engage in a “new type of adjudication”, evidentiary rules
would have to be expanded. Justice Wilson called for more legislative facts, facts
that would portray the contextual framework, the socio-political and economic en-
vironment, in which the litigation was taking place.78 She noted that the choices
judges made were “inevitably influenced by the judiciary’s perception of the larger
social context in which these factors come into play”.’ Counsel were therefore to
“inform themselves thoroughly on the social context in which the issue arises and
… must appreciate it not only intellectually but emotionally as well”.’ She further
stated that “[the judiciary is] in the business now of weighing competing values and
values have an emotional and spiritual as well as an intellectual content.”‘ No mere
legislators: these judges were to speak from the Mount.
c.
Certainty versus Flexibility
Justice Wilson felt comfortable with the new role which she believed the
Charter created for the judiciary. She believed that the Charter, of which she was
“an unabashed and enthusiastic supporter”,” resolved the long standing legal ten-
sion felt by judges between the need for certainty and the need for flexibility.” She
stated that “some judges have a tendency to favour certainty and … judicial restraint
while others are disposed to put their emphasis on the need to bring the law into
conformity with current social mores.”” The choices judges make are influenced by
their perceptions of the appropriate role of the judiciary.”
yers’Club, Toronto, Canada, 6 January 1983) (1983) 4 Advocates’ Q. I at 7.
78 See B. Wilson, “Evidence under the Charter of Rights” (Lecture to Upper Year Class, College of
Law, University of Saskatchewan, Saskatoon, Canada, November 1984) in Speeches, supra note 22,
287 at 289 [hereinafter “Evidence under the Charter”].
” “Extrinsic Evidence” in Speeches, supra note 22 at 646.
“Constitutional Advocacy”, supra note 52 at 273.
“Ibid
s2 B. Wilson, “Retirement Ceremony of the Honourable Bertha Wilson, Supreme Court of Canada”
(Supreme Court of Canada, 4 December 1990) (1990) 25 L. Soc. Gaz. 6 at 18 [hereinafter
“Retirement Ceremony”].
” Justice Wilson began many speeches by describing the tension that these two forces created for
judges. She cited Lord Gardiner.
There are two very desirable things about a system of justice; one is that it should be
certain, because nothing is worse when people go to a solicitor, and he says, “I cannot
tell you what the answer is. It entirely depends which judge we get.” On the other
hand, it is desirable that the law should be flexible so as to meet changing social and
economic conditions, and these two very desirable things are in permanent conflict
(cited in “New Role for the Courts” in Speeches, supra note 22 at 157).
She also cited H.L.A. Hart to the same effect (see H.L.A. Hart, The Concept of Law (Oxford:
Clarendon Press, 1961) at 127, cited in “Extrinsic Evidence” in Speeches, supra note 22 at 642).
“”Decision-Making”, supra note 34 at 231; “The Charter (U. of S.)”, supra note 34 at 169.
‘3See: “Decision-Making”, ibid.; B. Wilson, “Law and Policy in a Court of Last Resort” in F
McArdle, ed., The Cambridge Lectures, 1989 (Montreal: Yvon Blais, 1990) 219 at 232 [hereinafter
“Court of Last Resort”].
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There is no doubt about where Justice Wilson placed herself on the cer-
tainty/flexibility spectrum. In 1982, she told the Ottawa Women’s Club that as a
student at Dalhousie University she had taken to the law “like a duck to water” be-
cause of the flexibility she saw in the law: “I was fascinated by the history of the
law and how it had developed over the years as social conditions changed and I
marvelled at its flexibility.”‘ For her, the Charter was the culmination of this trend;
it invited the judge to write the Constitution according to the judge’s view of a car-
ing society’s values:
[The Charter] put law into the kind of perspective in which I had always seen
it- as large as life itself- not a narrow legalistic discipline in which inflexi-
ble rules are applied regardless of the justice of the result, but a set of values
that we, as a civilized caring and cultured people, endorse as the right of all our
citizens, black or white, male or female, rich or poor, to enjoy.”
In December 1985, just after the equality provisions of the Charter took ef-
fect,” Justice Lamer, writing for the majority of the Supreme Court in Reference Re
Section 94(2) of the Motor Vehicle Act,” announced that any lingering doubts as to
the legitimacy of judicial review under the Charter had been laid to rest. Despite
warnings of a judicial “super-legislature”, Justice Lamer reminded us not to forget
that the historic decision to entrench the Charter had been taken by the elected rep-
resentatives of the people of Canada.9 The ghost of illegitimacy, however, contin-
ued to haunt Justice Wilson’s speeches.
She cited tradition as one way of justifying the Court’s new quasi-legislative
role. She pointed out that the common law was a body of judge-made law created
by courts weighing competing policy considerations. After the Morgentaler case,
Robert Fulford observed that courts had accepted some of the power to set priori-
ties for society: “[T]he Charter has turned judges into politicians.”9’ Justice Wilson
answered by pointing out that policy decisions had always, to a greater or lesser
extent, been an essential component of judicial decision-making. She referred with
approval to the following statement of former Supreme Court Justice Emmett Hall:
“Traditionally the common law grew and became a civilizing force in our society
only because it considered social, political and economic facts. Indeed, every rule
B. Wilson (Address to Ottawa Women’s Canadian Club, Ottawa, Canada, 23 September 1982) in
Speeches, supra note 22, 19 at 25.
“7 B. Wilson, “Law as Large as Life” (Lecture on Legal Education delivered to First Year Students
at Queen’s University Faculty of Law, Kingston, Canada, 6 September 1990) in Speeches, supra note
22, 681 at 684-85.
T See subsection 32(2) of the Charter, which provided that the equality provisions set out in section
15 of the Charter would not come into effect until three years after the Charter came into force.
89 [1985] 2 S.C.R. 486, 24 D.L.R. (4th) 536 [hereinafter B.C. Motor Vehicle Reference cited to
S.C.R.].
See ibid. at 497.
R. Fulford, “Probing the Supreme Court” (January/February 1989) The New Federation 42 at 43,
quoted in “Court of Last Resort”, supra note 85 at 220.
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R.E. HAWKINS & R. MARTIN – DEMOCRACYAND JUDGING
of law is simply an earlier court’s decision about how competing interests and val-
ues ought to be reconciled.”‘
The analogy Justice Wilson sought to make is inapt. Constitutional law is legis-
lated law; the common law is judge-made law. The norms contained in the Charter
are not earlier court decisions to be altered by subsequent cases. They are principles
that legislators have established and which define, among other things, the role of
judges. As such, they are to be respected, not rewritten, by judges. It is one thing
for a judge to alter a judge-made policy; it is quite another to rewrite the legisla-
ture’s policy.
Even at common law, the elaboration of policy is not rooted in the judge’s per-
sonal, economic and social beliefs. It is rooted in precedent and in its reasoned
elaboration as it evolves interstitially when applied to new fact situations. The for-
mer Chief Justice of the Australian High Court, Sir Owen Dixon, in an address de-
livered at Yale University in September 1955, entitled “Concerning Judicial
Method”, described this process:
“It is one thing for a court to seek to extend the application of accepted princi-
ples to new cases or to reason from the more fundamental of settled legal prin-
ciples to new conclusions or to decide that a category is not closed against un-
forseen [sic] instances which in reason might be subsumed thereunder. It is an
entirely different thing for a judge, vho is discontented with a result held to
flow from a long accepted legal principle, deliberately to abandon the principle
in the name of justice or of social necessity or of social convenience. The for-
mer accords with the technique of the common law and amounts to no more
than an enlightened application of modes of reasoning traditionally respected in
the courts. It is a process by the repeated use of which the law is developed, is
adapted to new conditions, and is improved in content. The latter means an
abrupt and almost arbitrary change.” 3
Justice Wilson may have sensed this, for she also looked to natural law theory to
justify the new constitutional role she assigned to the Court. She suggested that the
courts’ quasi-legislative activity could be justified on the basis of morality:
Judges occupy the unusual position in a democracy of being non-elected offi-
cials who are given significant decision-making power over the lives and prop-
erty of their fellow citizens without being subject to removal if their decisions
are unpopular. Those judges who advocate judicial restraint have a proper con-
cern over their lack of accountability to the public and tend to think that any
significant change in the law should be made by the duly elected representa-
tives of the people. However, while constitutional considerations may favour
the exercise of judicial restraint, moral considerations may impel a judge in the
opposite direction. All judges would like to think that their decisions, as well as
‘2 E. Hall, “Law Reform and the Judiciary’s Role” (1972) 10 Osgoode Hall L.J. 399 at 405, quoted
in “Court of Last Resore’, ibid
” Quoted in Harrison v. Carswell, [1976] 2 S.C.R. 200 at 218-19, 62 D.L.R. (3d) 68, Dickson J.
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
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constituting a proper application of legal principle, reflect current notions of
what is right and fair. The difficulty, however, is to determine what current no-
tions of justice and fairness are.’
Subjectivity is, of course, the difficulty. Justice Wilson offered two approaches
to this difficulty. According to advocates of judicial activism, judges who employ
“concepts of equity and justice” in resolving constitutional problems are not impos-
ing their own personal values but, rather, are resorting to what they perceive to be
“the generally accepted values of the community.”‘” Noting the risk inherent in this
subjective approach, she referred to the work of Professor Abram Chayes, who
wrote that judicial review can only be justified “on the basis of the justice of the
substantive results reached by the court.”‘ These results are justified if “they reflect
a general consensus of the people as to what justice requires in a given situation”.
This is nonsense, but we welcome its frankness. There is no general consensus
on matters such as euthanasia, mandatory retirement, abortion, the language to be
used on commercial signs, procedures for processing refugee claimants, and the
like. If there were, one would expect it to be reflected in legislation. Indeed, if there
were consensus, such issues would not be sufficiently controversial to warrant be-
ing heard by the Supreme Court of Canada. To accept that judicial review can be
justified on the basis of “good” outcomes concedes to the judge the role of benevo-
lent dictator. It begs the fundamental question whether the Constitution grants
judges such a role, benevolent or otherwise.
Justice Wilson believed the other safeguard against subjectivity lay in the
Court’s role under the Charter as protector of disadvantaged
individuals and
groups. In Morgentaler, she wrote that “the rights guaranteed in the Charter erect
around each individual, metaphorically speaking, an invisible fence over which the
state will not be allowed to trespass.”” She spoke earlier of a “huge, impersonal bu-
reaucracy which threatens us with new forms of injustice and hardship.”” Destiny
“”Decision-Making”, supra note 34 at 231.
95 Ibid. Madame Justice McLachlin later suggested that an objective, responsible approach to
Charter litigation could be achieved by judges examining the purposes of the Charter guarantee in
question and by “seeking the dominant views being expressed in society at large on the question in is-
sue” (B.M. McLachlin, “The Charter: A New Role for the Judiciary?” (1991) 29 Alta. L. Rev. 540 at
547). Normally, one thinks that this is a function of the legislature.
96 “Decision-Making”, ibid at 240, referring to A. Chayes, “The Role of the Judge in Public Law
Litigation” (1976) 89 Harv. L. Rev. 1281 at 1316.
9′ “Decision-Making”, ibid. at 240-41.
“Morgentaler, supra note 27 at 164.
9′ B. Wilson, “Respecting the Law and our Democratic Institutions” (Fifth R.W.B. Jackson Lecture
at The Ontario Institute for Studies in Education, Toronto, Canada, 15 April 1985) in Speeches, supra
note 22, 357 at 361 [hereinafter “Law and Democratic Institutions”]. See also her discussion of “The
Historical Development of the Canadian State” in McKinney, supra note 63 at 344-52. There is some
inconsistency here. In “Law and Democratic Institutions”, government was the enemy; in her McKin-
ney remarks, the growth of the government was praised for the services that it provided to the popu-
lation.
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R.E. HAWKINS & R. MARTIN – DEMOCRACYAND JUDGING
cast the Court in the role of the white knight:
The infusion into the system in April 1982 of the Canadian Charter of Rights
and Freedoms was not in my opinion coincidental. It was, in a sense, pre-
ordained. The stresses created by the absence of adequate mechanisms to check
the monolithic power of the state had put the democratic process into serious
imbalance and the individual was left with a sense of powerlessness and frus-
tration. The public has high expectations that the Charter interpreted and ad-
ministered by an independent judiciary will provide a bulwark against big gov-
ernment, and the abuse of power which frequently goes with it, and be an ef-
fective instrument to restore that balance.
The text of the Charter does not erect a metaphorical fence around individuals.
This statement suggests that Justice Wilson saw in the Charter a general guarantee
of individual autonomy as against the state. If this is indeed what the Charter was
intended to do, why does its text, in fact, set out six sets of quite specific guarantees
that, taken in the aggregate, do not even approximate the open-ended affirmation of
individual freedom of action posited by Justice Wilson?
d.
Equality Rights
Justice Wilson’s concern with the effect of “big government’ led her to argue
that the courts must be particularly vigilant in protecting the rights of those most
likely to be ignored when laws are made: the poor; the oppressed; the powerless;
racial minorities; accused criminals; and others shut out of the political process.’ In
the Jackson lecture, she cited Professor Russell who stated that the Charter “gives
minority groups a kind of leverage on policy-making that they could not obtain
through the legislative process”.'” She interpreted Professor Russell as saying that
the courts, through the Charter, were being called upon to defend individuals and
minority groups against the greater political power of the majority.’ 3
In R. v. Turpin,” Justice Wilson held that the guarantee of equal treatment un-
der the law set out in section 15 of the Charter only extends to those who have suf-
fered social, political or legal disadvantage as a result of stereotyping, historical
disadvantage or vulnerability to political or social prejudice. In a speech in 1993,
she argued that in Andrews v. Law Society of British Columbia,”‘ Turpin’s predeces-
sor, the Court rejected a neutral, abstract concept of inequality and focused instead
‘”Law and Democratic Institutions” in Speeches, ibid. This view of government may help explain
why Justice Wilson, in McKinney and in Stoffman, discussed earlier at text accompanying, notes 63-
65, wished to give section 32 of the Charter the broadest possible interpretation.
‘0’ “Making of a Constitution” in Speeches, ibid. at 564.
‘0’ “Law and Democratic Institutions” in Speeches, ibid. at 361.
’03 Ibid. Although Professor Russell gave the Charter this interpretation, it was a judicial role with
which he was uneasy because of its anti-democratic implications.
4 [1989] 1 S.C.R. 1296,48 C.C.C. (3d) 8 [hereinafter Turpin cited to S.C.R.].
‘0’ [19891 1 S.C.R. 143, 56 D.L.R. (4th) 1.
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on the historical reality of disadvantaged groups in our society.” In other words, a
person who is under no current or historical disadvantage could have no claim to
equality rights, no matter how arbitrarily a particular law treated him or her. This
reading of section 15(1) appears to lack a textual or legal basis.’ Rather, it is based
on Justice Wilson’s view that the meaning of the Constitution is to be determined in
accordance with what the judge feels is morally right. The outcome in any case
would thus depend on whether, in the judge’s opinion, the individual or minority
group was being subjected to oppressive majoritarian laws.’
Justice Wilson’s approach to section 15 is unprincipled in two respects. First, it
is a blatant rejection of the democratic principle. Section 15(1) begins with re-
markably clear words: “Every individual is equal”. Justice Wilson’s interpretation
,6See B. Wilson, Address to National Association of Women and the Law conference (Vancouver,
Canada, April 1993), quoted in “Dolphin Delivery doesn’t preclude use of Charter in private litiga-
tion: Wilson” The Lawyers’ Weekly (12 March 1993) 9 [hereinafter “Charter in Private Litigation”].
R.E. Hawkins, “Interpretivism and Sections 7 & 15 of the Canadian Charter of Rights and
‘”See
Freedoms” (1990) 22 Ottawa L. Rev. 275 [hereinafter “Interpretivism”].
‘” One theory of judicial review identifies disadvantaged groups in terms of their lack of access to
the political process. The idea that judicial review can be legitimized by focusing on procedure rather
than substance (see United States v. Carolene Products Co., 304 U.S. 144 at note 4, p. 152, 58 S. Ct.
771 (1938)), has been transported, through the writing of J.H. Ely (see supra note 9) to Canada by,
among others, Professor Monahan. These scholars suggest that the Court will do considerably less of-
fence to our democratic principles by ensuring that the democratic process is truly democratic than it
will by striking down the substantive laws passed by legislatures. Hence, particular minority groups
are favoured because they have not had the same democratic input as other groups and in order to en-
sure that this situation will be corrected in the future.
Professor Hogg offers two criticisms of this “process-based” theory: “First, many of the broader
Charter guarantees are inescapably substantive … Secondly, the legal rights guarantees, although pro-
cedural in form, are ultimately directed to the substantive goal of respect for individual liberty, dignity
and privacy” (Hogg, supra note 22 at 816).
Professor Bork is also critical:
The minority [Ely] would have the Courts protect is one that “keeps finding itself on
the wrong end of the legislature’s classifications, for reasons that in some sense are dis-
creditable.” … Ely’s theory, which purports to take judges out of the business of making
policy decisions, in fact plunges them into such decisions by requiring that they distin-
guish between cases in which groups lost in the legislative process for good reason
(burglars) and those in which they lost for discreditable reasons (aliens, the poor, ho-
mosexuals, etc.) I fear that this is another point at which his system collapses. The re-
sults it produces turn out to be just another list of results on the liberal agenda which
the Court must enact because legislatures won’t (Bork, supra note 61 at 198-99).
Justice Wilson, in favouring certain groups, does not appear to do so because they had been dis-
advantaged in the legislative process, although some may have been. Rather, she views these groups
as disadvantaged because of the prejudice they have suffered historically or are currently suffering. In
her view, that is reason enough for the Court to protect them, regardless of the influence they may or
may not have had in the political process. For example, she felt women were a disadvantaged group,
but they are not without political influence: witness the amendments they obtained to the Charter
during its passage (see P. Kome, The Taking of Twenty-Eight: Women Challenge the Constitution
(Toronto: Women’s Press, 1983)).
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R.E. HAWKINS & R. MARTIN – DEMOCRACY AND JUDGING
is an unabashed judicial rewriting of the section. Even her supporters have con-
ceded this point.'”‘ Second, Wilson’s interpretation is also a rejection of the liberal
principle. The principle of equality before the law –
that is, that every citizen has,
and must have, the same legal rights as every other citizen –
is the fundamental
liberal notion. According to Justice Wilson’s interpretation of section 15, a law that
infringed upon the civil and political rights of white males would not be regarded as
violating the Charter’s equality guarantee. In these decisions, Justice Wilson dem-
onstrated her disregard for the basic principles of liberal-democratic constitutional-
ism.
A theory that justifies judicial review on the ground that the courts are morally
obligated to protect disadvantaged groups, with only the whim of the judge to de-
fine the nature of the disadvantage in question, is entirely subjective. Any demo-
cratic theory of law-making assigns to elected law-makers the authority to decide
which groups in society are to receive benefits or to shoulder burdens. That is the
essence of law-making. These decisions are assigned to representatives who are ac-
countable at election time precisely because such decisions are by their nature sub-
jective. Because of the subjective character of these choices, it is illegitimate for
judges to make them under the guise of judicial review.
Justice Wilson never found a satisfactory way around the problem of subjectiv-
ity in her effort to use socio-political factors to legitimate judicial constitutional
law-making. So long as she was a prisoner of her own subjective value system, and
so long as she sought to advance that value system through judicial review, she
lacked an external standard by which to justify her actions. The protection of cer-
tain preferred, discrete minorities may have, in her opinion, provided a moral justi-
fication for her decisions, but it was one that was neither objective, constitutional
nor democratic. For some other judge, protection of laissez-faire capitalism might
provide a moral justification for judicial review, but the same critical observations
would apply.”‘
Ultimately, Justice Wilson sought an interpretivist justification for the new role
that she ascribed to the Court. She looked to the text and historical origins of the
Charter. At her retirement ceremony on December 4, 1990, she again raised the
legitimacy issue by offering the following observation:
It was the high court of Parliament itself which gave us our Charter. It was
Parliament itself which made this national political choice, and it was Parlia-
ment itself which charged the judiciary with the solemn and awesome task of
o9 See e.g. Gibson, supra note 14 at 266.
“0 In a conference held at Osgoode Hall Law School in 1976, Mr. Justice Dickson cautioned those
who would argue for a more activist judiciary: “Those who are the strongest in promoting or advocat-
ing that the courts be activists in one direction would perhaps be among the first to be critical if the
same power that they would accord the court was manifested in the opposite direction” (R.G.B. Dick-
son, Comment on W.R. Lederman’s The Independence of the Judiciary in A.M. Linden, ed., The Ca-
nadian Judiciary (Toronto: Osgoode Hall Law School, 1976) 80 at 81).
MCGILL LAw JOURNAL/REVUE DE DROITDE McGILL
[Vol. 41
determining the constitutionality of the laws it passes. Judicial review is not
designed to inhibit responsible government, but to facilitate it, by making sure
that the objectives of government are achieved in a constitutionally permissible
way.
It was the intent of the Constitution’s authors, therefore, that the courts should write
the Charter. This national political choice meant there was no conflict between the
roles of the courts and of Parliament.”‘ Parliament had “reposed substantial new
power and responsibility in the courts and particularly in the Supreme Court of
Canada”.”
e.
Section 1 and the Override
Justice Wilson’s reading of section 1 confirmed for her the theory that the
Charter gave the court a new role. That section requires the courts to balance com-
peting values against each other in order to determine, “which is the more impor-
tant value in a democracy such as ours.””‘ In her view, the section obliges the courts
to “help to make our society more caring, more tolerant and more civilized”.”
As will be discussed in detail below, the original purpose of section 1 was to
limit the courts’ ability to strike down democratically enacted legislation. Legisla-
tion, even if it infringes a Charter guarantee, is allowed to stand if the government
can show that it is demonstrably justifiable in a free and democratic society. For
Justice Wilson, however, section 1 is not meant as a means of saving legislation
designed to forward important government objectives.”‘ Rather, the section is to be
read in a way that would prevent the Charter from being “emasculated”. ‘” that is to
say, in a way that gives the widest possible scope to judicial review.
‘ “Retirement Ceremony”, supra note 82 at 18. See also B. Wilson, “Human Rights and the
Courts” (Paper delivered at the Seminar on the Functioning of Government: The Canadian Experi-
ence, Ottawa, Canada, 30 May 1991) in Speeches, supra note 22, 741 at 743 [hereinafter “Human
Rights and the Courts”].
..2 See “Human Rights and the Courts” in Speeches, ibid. These words echoed Justice Lamer in
B.C. Motor Vehicle Reference (see text accompanying notes 89ff, above).
“”The Charter (U. of S.)”, supra note 34 at 172.
” “Human Rights and the Courts” in Speeches, supra note 22 at 746.
‘”IbiL at 748.
116 This is the usual use for section 1 (see e.g. R. v. Oakes, [1986] 1 S.C.R. 103 at 138-40,26 D.L.R.
(4th) 200).
‘” “Human Rights and the Courts” in Speeches, supra note 22 at 747. A similar approach to section
1, which would read the saving provision narrowly, is reflected in the following statements of Justice
Wilson:
Certainly the guarantees of the Charter would be illusory if they could be ignored be-
cause it was administratively convenient to do so … The constitutional entrenchment of
the principles of fundamental justice in s. 7 … implicitly recognize[s] that a balance of
administrative convenience does not override the need to adhere to these principles
(Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 at 218-19, (sub
nom. Re Singh and Minister of Employment and Immigration) 17 D.L.R. (4th) 422).
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R.E. HAWKINS & R. MARTIN – DEMOCRACYAND JUDGING
It is not the job of a judge in a democracy to “make” society anything. In con-
stitutional litigation, judges must only ensure that the other organs of the state have
acted in accordance with the constitution.
Section 33 of the Charter contains an override provision which permits a legis-
lature to preclude the application of the Charter sections that guarantee civil rights
to certain acts. This provision justified, in Justice Wilson’s view, an aggressive leg-
islative role for the courts. If legislators felt that the courts were wrong in declaring
a law unconstitutional, or simply wanted to proceed despite the law’s unconstitu-
tionality, they could simply pass the legislation again, this time invoking the Char-
ter override. Referring to section 33, Justice Wilson stated:
I don’t think that judicial review and deference to the legislature are con-
cepts that sit very well together and I believe that the government must have
appreciated this. I think this is why it took out some insurance. It preserved to
itself the last word on any issue coming before the Court by including in the
Charter the so-called opting out provision, s. 33 …..
If Justice Wilson’s interpretation of the Charter’s text and its history were accu-
rate, she would have succeeded in grounding her vision of the Court as a super-
legislature in a set of external and democratic principles. However, her reading was
incorrect.
2.
The Legislator’s View
As will be shown, the legislators who entrenched the Charter in the Constitu-
tion had no intention of abandoning the doctrine of parliamentary supremacy in fa-
vour of a doctrine of aggressive judicial review. They never intended to pass the
legislative torch. Instead, the Charter was a typically Canadian compromise, a deal
struck after a very politicized negotiation in which it was decided that rights would
be protected by the Constitution but in such a way as to respect, to the greatest de-
gree possible, the supremacy of Parliament. There was to be judicial review, but a
fair reading of the historical record shows that it was intended to be careful and re-
strained judicial review.
The negotiation over the Charter is familiar to those who lived through it. This
includes, of course, every Justice on the Supreme Court during Justice Wilson’s
tenure. Premier Lyon of Manitoba had been fighting Prime Minister Trudeau’s de-
sire for an entrenched Charter since they were both Attorneys-General in the late
Justice Wilson again expressed these sentiments in a 1988 speech:
The courts must careful [sic] scrutinize this legislation to ensure that it does not sacri-
fice the rights of the few simply to enhance the welfare of the many. For if the courts
allowed rights to be overridden for merely utilitarian reasons the protection afforded to
the individual would be illusory indeed (“Making of a Constitution” in Speeches, supra
note 22 at 563-64).
“8 “Human Rights and the Courts” in Speeches, ibid at 745.
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(Vol. 41
1960s.”” At the Federal-Provincial Conference of First Ministers on the Constitu-
tion, held in September 1980, Premier Lyon rejected the suggestion of entrenching
a charter of rights. He argued for the principle of parliamentary sovereignty.2′
Premiers MacLean, of Prince Edward Island, and Blakeney, of Saskatchewan, both
supported the Lyon position before the Special Joint Committee of the Senate and
House of Commons on the Constitution of Canada.’2′
“9 See R. Sheppard & M. Valpy, The National Deal: The Fight For a Canadian Constitution
(Toronto: Fleet, 1982) at 183.
The nature of Premier Lyon’s opposition is made clear in the following extracts from his state-
ment to the conference:
Prime Minister, while Manitoba actively supports the protection of human rights it
opposes the entrenchment of a charter of rights on principle…. We and other provinces
in short find entrenchment to be totally contrary to our traditional and our successful
parliamentary government and thereby not in the best interests of Canadians.
Apart from the absence of historical justification for this proposal, we oppose the con-
cept on the basis of the following principles:
(1)
An entrenched charter of rights would remove the supremacy of Parlia-
ment and of legislatures which, because it leaves the determination and protection of
rights in the hands of elected and accountable representatives of the people, is the cor-
ner stone of our Parliamentary system of government;
(2)
Parliament and the legislatures are better equipped to resolve social issues
than are judges who are not accountable to the people;
(3)
An entrenched charter would involve the courts in political matters …
Throughout our history, Mr. Prime Minister, our rights have been protected by those
people whom we elect, that the people elect to represent them. I can see no reason to
transfer that function and responsibility to appointees who, however capable in their
own areas, are not involved with the consequences, that recognition of rights has on
economic resources, on social activities, nor with the need for pragmatic compromises
(Federal-Provincial Conference of First Ministers on the Constitution (Ottawa, 8-13
September 1980) vol. 1 at 476-81 [hereinafter First Ministers’ Conference]).
2 See Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of
the House of Commons on the Constitution of Canada (Ottawa: Queen’s Printer, 1980-81) at 30:38
(Blakeney), 14:81 (MacLean) [hereinafter Minutes of Proceedings and Evidence]. On November 27,
1980, Premier MacLean quoted his own statement, originally delivered at the First Ministers’ Confer-
ence of September 8-13, 1980:
In no sense is Prince Edward Island’s position one of opposition to fundamental rights,
but, rather, how these time-honoured rights are best protected and developed. Our un-
ease on this matter is based on our fear that an entrenched Charter of Rights would
weaken our parliamentary democracy. Our position is one of principle. Our parliamen-
tary institutions over centuries have not just defined and nurtured our rights, but in
many instances Parliament, expressing the will of the people, has devised our rights.
Transferring the definition of our basic social values from our legislatures to the Su-
preme Court would weaken, I believe, our parliamentary traditions and weaken the
very rights which now concern us (Minutes of Proceedings and Evidence, ibid. at
14:81).
1995]
R.E. HAWKINS & R. MARTIN – DEMOCRACYAND JUDGING
The “gang of eight” premiers opposed to the federal government’s plan to
“patriate” the Constitution with a new amending formula and the Charter, pre-
sented their counter-proposal in April 1981.’ Their counter proposal called for pa-
triation with a different formula for constitutional amendment and without the
Charter. At the final constitutional conference
in November 1981, Premier
Blakeney repeated his opposition to an entrenched charter of rights and defended
parliamentary supremacy.”‘ He was supported by Premier Lougheed.’2″ The way
was paved for constitutional amendment only when the federal government agreed
to accept the premiers’ amending formula and the premiers agreed to accept en-
trenchment of a charter of rights but a weakened rights guarantee containing an
override clause. It was generally accepted that a deal had been struck in which all
parties got part, but not all, of what they wanted.'”
Although a general limitation clause, one that would make it clear that rights
were not absolute, had been discussed for some time, it first appeared as section 1,
in more or less its current form, in a Federal Draft of August 22, 1980.2 The draft
,22At this stage, only the Premiers of Ontario and New Brunswick supported the Trudeau govern-
ment’s proposed constitutional changes. The other eight premiers, who opposed the package, were
popularly referred to as the “gang of eight”.
Premier Blakeney stated:
I am tempted to take issue with those who advocate an entrenched Charter of Rights.
The argument that to take power from the voters and their elected representatives and
to give that power all but irrevocably to appointed judges, the argument that that some-
how enlarges rights and freedoms has always been a difficult argument for me and I
am unconvinced by it. … I continue to believe that in a democratic society [issues that
deal with the basic structure of our society] ought to be decided by the political process
and not by the judicial process (Federal-Provincial Conference of First Ministers on the
Constitution (Ottawa, 2-5 November 1981) at 59-60).
,24 See ibid. at 128.
… The newspaper accounts in the several days following the agreement are instructive. The Ottawa
Citizen carried the following comment: “When future chroniclers of Canada’s constitution examine
the events of this week, they will likely conclude that the first ministers haggled like merchants in a
bazaar until they made a deal that nobody could claim was a victory” (“History in the bazaar” The
Ottawa Citizen (6 November 1981) 8). Lise Bissonnette, writing in Le Devoir observed:
Que les marchands de tapis et les ngociateurs professionnels me pardonnent, cela tient
t a fois du souk et des grandes “rondes” du secteur public et parapublic, sauf qu’il ne
s’agit ni de tapis ni de salaires, mais des droits des citoyens. La mani~re, seule et uni-
que, est le marchandage. La tactique va du bluff A la tromperie, en passant par la me-
nace. L’attitude mentale, gnirale, est le cynisme (L. Bissonnette, “Quatre jours de
troc” Le Devoir (7 novembre 1981) 18).
See also: Sheppard & Valpy, supra note 119 at c. 13; R.E. Hawkins, L’enchassement de la Charte
canadienne des droits et libertis dans la Constitution canadienne (D.E.A. Thesis, Universitd de Paris
1, 1988).
,26 See Meeting of the Continuing Committee of Ministers on the Constitution, The Canadian
Charter of Rights and Freedoms, Federal Draft, August 22, 1980 (Ottawa, 26-29 August 1980), cited
in A. Bayefsky, Canada’s Constitution Act 1982 & Amendments: A Documentary History, vol. 2
McGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
[Vol. 41
was produced by a sub-committee of officials which was an off-shoot of the Con-
tinuing Committee of Ministers on the Constitution. The sub-committee, which in-
cluded representatives of the federal and all the provincial governments, was
chaired by Deputy Minister of Justice Roger Tass6 and was formed to examine
Charter issues referred to it by the Ministers. In a July 24, 1980 report, the sub-
committee stated:
10.a. Limitation clauses: On several occasions during discussion of the forego-
ing rights, concerns were expressed about the scope and meaning of the limita-
tion clauses found in various sections. As one possible means of overcoming
this problem federal representatives suggested that consideration be given to an
opening clause in the Charter that would indicate that none of the rights and
freedoms were absolutes but must be balanced against the interests of an organ-
ized free and democratic society operating under the rle of law. This could
eliminate the need for any specific limitation clauses. This proposal was not fa-
vourably received by most provinces that responded to it.’ 7
Barry L. Strayer, Assistant Deputy Minister of Justice at the time of the nego-
tiations, has described the bargaining over section 1 as follows:
For those of us who were representing the Government of Canada in these ne-
gotiations, acting as advocates for the Charter, we sought structure and terminol-
ogy which would make the Charter effective while making it as acceptable as
possible to the legislative supremacists …
The political considerations which dictated a certain narrowing of the terms of
the Charter, in order to achieve an acceptable balance between individual rights
and majoritarian democracy, also found explicit expression in Sections I and 33.
Section 1 … also expressly recognises that such rights are not absolute. It pre-
serves the possibility of certain limits being placed on those rights, as long as
legislatures take the responsibility for prescribing such limitations, and as long
as such limits are “reasonable” and “demonstrably justified in a free and demo-
cratic society.” It was thought that this would at least avoid some of the prob-
lems experienced under the United States Constitution by expressly recognising
that individual rights must yield to reasonable limitations imposed in the protec-
tion of valid collective interests or in die protection of the rights of others. Thus
an important measure of legislative freedom to qualify individual rights is pre-
served, although the onus is on those relying on such qualifications to justify
them before a court if necessary. The “free and democratic society” test did
leave much margin for judicial creativity in adjudging permissible limitations on
those rights, but here it would be for the legislature to postulate a given limita-
tion on a guaranteed right and for the courts to react to that limitation. Courts
were not given a roving mandate –
to
ensure that all our laws are suitable for a free and democratic country.’8
a kind of “search and destroy” mission –
(Toronto: McGraw-Hill, 1989) at 669.
.27 See Meeting of the Continuing Committee of Ministers on the Constitution, Report by the Sub-
Committee of Officials on a Charter of Rights, July 24, 1980 (Vancouver, 22-24 July 1980), cited in
Bayefsky, ibid., vol. 2 at 661.
.Strayer, supra note 29 at 351-53. Strayer further points out that the political consensus reached in
1995]
R.E. HAWKINS & R. MARTIN- DEMOCRACYAND JUDGING
The legislative history of the section 33 override provision is similar to that of
section 1. The override was not included to enable judges to legislate at will. Quite
the contrary. It was included because it was feared, largely on the basis of the
American experience, that judges might attempt to strike down legislation at will.
The hope was that they would not; the fear was that they might. Contrary to Justice
Wilson’s interpretation, the inclusion of section 33 provides no justification for let-
ting judges embark on a “search and destroy” mission with respect to legislation
favour of the Charter
was premised on positivism –
that the language of the Charter so painfully arrived at
by elected representatives was to define the rights being guaranteed by it. There was no
invitation to Courts to look instead to natural law (by whatever label they might call it)
to prescribe the rights which, to the judicial mind, should be protected (Strayer, ibid. at
352).
This makes sense: if the Charter was to be an open invitation to judges to do what they wanted,
why would there have been such extensive negotiation over its content? This contradicts Professors
Hogg’s view of the process. He has written:
With respect to the Constitution Act, 1867, it is quite likely that the “interpretative
intention” of the framers was something like the doctrine of progressive interpretation.
They knew that their handiwork would have to adapt to changes in society, and yet
they did not seem to contemplate amendment as a frequent method of adaptation, be-
cause they made no provision for amendment of the constitutional text, and amend-
ment was in fact only possible by the agency of the imperial Parliament of Great Brit-
ain. With respect to the Constitution Act, 1982, the proceedings of the Special Joint
Committee of the Senate and House of Commons on the Constitution of Canada indi-
cate rather clearly that the civil servants who drafted the text and the ministers and
members of Parliament who adopted it assumed that the courts would not be bound by
the views of the framers, and would interpret the text in ways that could not be pre-
dicted with certainty (Hogg, supra note 22 at 1290 [footnotes omitted], citing . Mona-
han, Politics and the Constitution: The Charter, Federalism and the Supreme Court of
Canada (Toronto: Carswell, 1987) at 78-82).
Justice Strayer’s recollection can be confirmed by reviewing the transcript of the Special
Committee. On November 12, 1980, Justice Minister Chrtien responded to a question from Senator
Austin as follows:
Senator Austin: I appreciate that, but it seems to me that the draft of paragraph 1, as
you have it, section 1 as you have it really could send the Courts off on, at the request
of counsel, on quite a wide ranging and, up until now, quite unusual search into other
parliamentary jurisdictions for precedence.
Justice Minister Chr6tien: If I can make a comment on that, I do think that when we
discussed during the summer with the provinces this general clause number one, that it
was at the insistence of the provinces that we made that qualification there, so that it
will not be too strict a proposition of the guarantee of rights and freedoms, that we will
restrict too much the activities of, traditional activities of the different levels of gov-
ernment.
It is a very complex problem, and at the insistence of the provinces we put that, I do
not know how to describe it, but, not a caveat, but this kind of limitation clause so that
it will not limit too extensively the power of the provincial legislature, and of course
the National parliament, to legislate what is considered legitimate in a free and demo-
cratic society (Minutes of Proceedings and Evidence, supra note 121 at 3:78).
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[Vol. 41
they do not like. Rather, it was a corrective device to be used if judges did precisely
that which they were not supposed to do.
Justice Wilson’s effort to legitimate the courts’ role as author of the Constitu-
tion was a failure. The common law did not provide her with an appropriate model
of interpretation; natural law did not resolve the problem of subjectivity; and her
positivist reading of the Charter’s text and its history was wrong. Sensing this fail-
ure, she finally settled on a fatalistic justification: “[The courts’] role is, of neces-
sity, an anti-majoritarian one..’.. “I must confess,” she added, “that to me judicial
review and deference to the legislature are an incompatible pair and I fear that our
attempt to combine them has simply resulted in a muddying of the jurisprudential
waters!'”” In order to purify those waters, she chose judicial activism and turned
her attention to developing a new interpretive method, one which would enable the
Court to carry out its own rewriting of the Constitution.
M. The Contextual Approach
Interpretivism does seem to retain the substantial
virtue of fitting better our ordinary notion of how
law works; if your job is to enforce the Constitution
then the Constitution is what you should be enforc-
ing, not whatever may happen to strike you as a
good idea at the time.’
J.H. Ely
A. Textual and Purposive Interpretation
When interpreting any law, a judge is not engaged in an exercise of free will but,
rather, in a search to discover what the legislature intended in passing the law. The
judge is not concerned with a hidden or subjective intention. Such a search would be
futile and irrelevant. Instead, the search commences by examining the ordinary
meaning or common understanding that the words conveyed when the law was
adopted. If the ordinary meaning of the words is clear, the judge is bound by that
meaning. Judges, however, are often faced with textual ambiguity. In order to clarify
that ambiguity, the judge moves on to a second stage of interpretation and looks be-
yond the text. For example, he or she can resort to the “mischief rule” of interpreta-
tion, and ask what “good” were the legislators trying to achieve; what “evil” were
they trying to remedy? To answer these questions, the judge can consider the social
context in which the legislation was passed, as well as the social context in which that
legislation is proposed to apply. Context is considered in order to find an interpreta-
tion that will forward the purpose intended by the legislators. “‘
1″3Constitutional
Advocacy”, supra note 52 at 270.
” “Making of a Constitution” in Speeches, supra note 22 at 563.
13 Supra note 9 at 12.
,32 This interpretive method applies equally to both constitutional and statute law. In Big M, Chief
1995]
R.E. HAWKINS & R. MARTIN – DEMOCRACYAND JUDGING
This approach to interpretation does not necessitate accepting the notion that
the words used in a constitution have an inherently fixed and immutable meaning.
Reasonable people may disagree over the ordinary meaning that the words con-
veyed at the time of their adoption, over legislative purposes and over the signifi-
cance of contextual facts. Nonetheless, certain patterns –
a range of meanings –
will emerge from many cases decided by many judges acting in good faith over
time. This range of meanings contains limits which restrain possible interpretations.
It is a range of meanings bounded by the search for the legislative will as opposed
to one that is an unbridled and naked exercise of judicial power.
Justice Wilson questioned this interpretive method. She dismissed its “textual”
or “abstract” approach, that is, the effort to give Charter rights a principled defini-
tion based on the intentions of the Constitution’s authors”3 and to find the ordinary
meaning or common understanding that the words in the Charter carried at the time
of their adoption. Instead, she adopted the “contextual” approach.”
B. The Contextual Approach
In her later speeches, often under the heading “The Making of a Constitution”,
Justice Wilson sought to develop a new method of constitutional interpretation. 3′
She called her method the contextual approach. In speeches referring to Edmonton
Journal v. Alberta (A.G.),’6 she explained the method as follows:
Justice Dickson set out the way in which rights were to be given a principled definition. He focused
on the Charter’s text (the plain meaning rule), the structure of the Charter (the scheme of the Act),
the purpose for which the right was protected (the mischief rule) and the historical background of the
Charter clauses in question:
In my view this analysis is to be undertaken, and the purpose of the right or freedom
in question is to be sought by reference to the character and the larger objects of the
Charter itself, to the language chosen to articulate the specific right or freedom, to the
historical origins of the concepts enshrined, and where applicable, to the meaning and
purpose of the other specific rights and freedoms with which it is associated within the
text of the Charter. The interpretation should be, as the judgement in Southam empha-
sizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the
guarantee and securing for individuals the full benefit of the Charter’s protection. At
the same time it is important not to overshoot the actual purpose of the right or freedom
in question, but to recall that the Charter was not enacted in a vacuum, and must there-
fore … be placed in its proper linguistic, philosophic and historical contexts (Big M, su-
pra note 24 at 344).
See “Decision-Making”, supra note 34 at 245-47.
“4lbid. at 247.
.33 The cat is already out of the bag. One might have thought that the legislators had made the
Constitution, but as the speech title suggests, Justice Wilson had concluded that this task was up to the
judges. Her speeches tell how they are to do this.
t16 [1989] 2 S.C.R. 1326, 64 D.L.R. (4th) 577 [hereinafter Ednonton Journal cited to S.C.R.].
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGiLL
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I distinguished what I referred to as an abstract interpretative approach from a
contextual approach. Under the abstract approach, the underlying value sought
to be protected by a given section of the Charter is determined at large. Under
the contextual approach inquiries into the nature of a right are rooted firmly in
the context of the case. I pointed out that a right or freedom may have different
meanings in different contexts. Security of the person, for example, might
mean one thing when addressed to the issue of over-crowding in prisons and
something quite different when addressed to the issue of noxious fumes from
industrial smokestacks. It was entirely probable that the value to be attached to
it in different contexts for the purpose of the balancing under s. 1 might also be
different. I concluded therefore that the importance of the right or freedom had
to be assessed in context rather than in the abstract and that its purpose had to
be ascertained in context. This having been done, the right or freedom must
then, in accordance with the dictates of the Court, be given a generous interpre-
tation aimed at fulfilling that purpose and securing for the individual the full
benefit of the guarantee.’37
In Edmonton Journal, itself, Justice Wilson wrote:
One virtue of the contextual approach, it seems to me, is that it recognizes that
a particular right or freedom may have a different value depending on the con-
text. It may be, for example, that freedom of expression has greater value in a
political context than it does in the context of disclosure of the details of a mat-
rimonial dispute. 3′
The contextual approach used by Justice Wilson had three characteristics. First,
the meaning of Charter words varied depending upon the social context in which
they were being asserted and upon the personal characteristics of the parties who
were asserting them. She was prepared to give those words whatever meaning was
required in the factual context before her to promote the social objectives to which
she was personally committed. Words like “liberty”, “equality” or “freedom of ex-
pression” were not defined by a constitutional principle, which referred to the pur-
pose that the Constitution’s authors sought when those rights were enshrined.
Rather, the definition of such words could vary from one context to another, poten-
tially accommodating a judge’s preference or certain ideological positions or cer-
tain classes of persons.
As discussed above, the “mischief rule” of statutory interpretation also takes
context into account. It treats context, however, in a manner different from the nomi-
nalistic treatment accorded to it by Justice Wilson. In the former sense, context re-
strains judicial review by helping the judge to determine the objectives sought by the
constitution’s authors. In the Wilsonian sense, context frees the judge to further his or
her personal political agenda by making the meaning of words infinitely flexible.’
,’ “Extrinsic Evidence” in Speeches, supra note 22 at 650. See also “Making of a Constitution” in
Speeches, ibid. at 567.
“‘ Edmonton Journal, supra note 136 at 1355.
“9 Justice Wilson used context in the same manner as it is typically used in feminist literature. One
feminist author has written:
1995]
R.E. HAWKINS & R. MARTIN – DEMOCRACYAND JUDGING
The variable meaning that this contextual approach gives to words results in
decisions of little precedential value. Freedom of association might mean one thing
when dealing with a union and quite another when dealing with a golf club;’
“security of the person” might mean one thing in an environmental context and
another in the context of the prison system; “equality” is guaranteed to people fac-
ing mandatory retirement but not to accused murderers seeking trial by judge alone
in Alberta.”‘ One is tempted to ask why; but that question can only be answered by
reference to a principled definition –
exactly what the contextual approach es-
chews. The answer that the contextual approach gives is: “Because the judge thinks
so” or “Because the judge wishes to promote certain ideological positions or favour
certain classes of litigants.” We argue that such an approach robs jurisprudence of
its consistency and jeopardizes the basic liberal principle of equality before the law.
The second characteristic of the contextual approach is the importance that it
places on the effect of the impugned legislation. Contextualism shifts the focus of
interpretation from an inquiry into the underlying purpose of the legislation at issue
to an inquiry into the effect of the legislation that is the subject of Charter chal-
lenge. Justice Wilson wrote:
I argue that it is in women’s interest to refuse to subscribe to, or commit themselves to,
any single meaning of equality. Feminist advocates need to learn to use the equality
discourse on behalf of women in as many and in as diverse situations as the term can
bear. The needs and experiences of women will dictate the meaning of equality in each
particular context. It is these needs and experiences which should be brought into the
open and promoted, not some reified idea of equality (D. Majury, “Strategizing in
Equality” (1987) 3 Wis. Women’s L.J. 169 at 186).
Contrast this with Justice LaForest’s description of how context is normally used in statutory inter-
pretation to facilitate the discovery and advancement of legislative purpose. In holding that the words
“family status” in the Canadian Human Rights Act, R.S.C. 1985, c. H-6, were not intended to encom-
pass same-sex couples, Justice LaForest stated:
In human terms, it is certainly arguable that bereavement leave should be granted to
homosexual couples in a long-term relationship in the same way as it applies to hetero-
sexual couples, but that is an issue for Parliament to address. It is not argued here that
anything in the context supports the contention that this was the legislative purpose …
But this brings us back to the question whether the addition of the words “family
status” had as one of its legislative purposes the protection of persons living in the po-
sition of the appellant … Nor is there any evidence in the surrounding context that this
was the mischief Parliament intended to address, which could afford some credence to
the argument that Parliament was using the words “family status” other than in their
ordinary sense …
In sum, neither ordinary meaning, context, or purpose indicates a legislative intention
to include same sex couples within “family status” (Canada (A.-G.) v. Mossop, [1993]
1 S.C.R. 554 at 586-87, 100 D.L.R. (4th) 658).
See Re Public Service Employee, supra note 26. See text accompanying notes 152ff, below, for a
discussion of this case.
“‘ See Turpin, supra note 104.
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When the courts are reviewing legislation under the Charter they are primarily
concerned with the effect of the legislation. The frst question they must answer
is: does it violate the fundamental rights of the citizen? At this stage the pur-
pose or intent of the legislation plays a secondary role. … mhe relevance of
legislative purpose or intent arises at the second stage of the inquiry, namely
under s. 1 of the Charter, when a rights violation has already been found to
have occurred and the government is seeking to justify the violation on the ba-
sis of some overriding social objective which the legislation was designed to
achieve. This, in my view, is a crucial distinction for the interpretive function
because an effects approach focuses attention on the context of the dispute be-
fore the Court rather than on an analysis of the text of the Charter. It requires
the Court to detenine the content of Charter rights such as freedom of ex-
pression, equality, fundamental justice, etc, in the context of real life situations
and on the basis of empirical data rather than on an illusive presumed or fic-
tional legislative intent.”‘
Without the restraining effect of a constitutional principle that defines the Charter
right at issue –
a principle derived from the intention of the Constitution’s authors
–
any judicial appraisal of the effects of a piece of legislation is nothing other than
an exercise in second-guessing legislative value choices. As such, it is inherently
undemocratic.
The third characteristic of the contextual approach involves the way the Char-
ter was meant to be applied in determining the constitutionality of legislation. Be-
cause of the structure of the Charter, and in particular because of the effect of sec-
tion 1, Charter adjudication is a two-stage process.’3 In the first stage, a judge is
required to determine whether the impugned legislation violates a right protected
by the Charter. In order to do this, the judge must determine the scope of the right
by giving it a principled definition based on the intentions of the Constitution’s
authors. If the legislation is found to violate the principle protected by the Charter,
then, in a second stage, the judge weighs the importance of the objectives sought by
the legislation against the significance of the violation of the right. Both factors are
balanced, under the rubric of section 1, in order to determine whether the legisla-
tion is constitutional.
Justice Wilson initially endorsed this two-stage process. Shortly after the pas-
sage of the Charter, she issued the following caution: “It is important, I believe, in
the early cases that we not make the mistake of rolling these two steps into one. For
we must, for starters, lay a base of jurisprudence under the individual rights and
freedoms.”‘”
‘” “Making of a Constitution” in Speeches, supra note 22 at 552-53.
” See Hogg, supra note 22 at 802 for this two-stage process.
‘””The Charter (U. of S.)”, supra note 34 at 173.
1995]
R.E. HAWKINS & R. MARTIN – DEMOCRACYAND JUDGING
The contextual approach, by downplaying the search for “abstract” or “textual”
the hallmark of the first step in Charter adjudication –
constitutional principles –
and by emphasizing the judge’s “balancing” role under section 1, effectively col-
lapses Charter adjudication into a one-step subjective process. Justice Wilson ar-
gued that Canadian courts should not adopt the U.S. practice of reading internal,
principled limits into the definitions of rights themselves.” Instead, the existence of
section 1 enabled her to directly make a choice between competing social policies
on the basis of social-science data.'”
The two-stage process of Charter adjudication reflects the balance established
by the drafters between judicial review and parliamentary supremacy. Section 1
was included in the Charter, in part, to guarantee rights and freedoms and, in part,
to prevent judicial review from encroaching too far on parliamentary sovereignty. It
was intended to allow law-makers a defence that would restrict the Court’s ability
to strike down legislation. If the standard of justification were set high –
as it
would be if the state had to show that its legislation was pressing and substantial
and only impaired rights minimally –
judges would have a broad discretion to
strike down legislation. However, if the standard were set low –
as it would be if
the State were only required to show that its legislation was reasonable –
the scope
of judicial discretion would be restricted.
The justification standard required under section 1 is related to the definition of
Charter rights. If, initially, rights are narrowly defined, fewer cases would reach the
second step. The State could, therefore, be held to a higher standard of justification
at the second step without the risk that legislation would often be struck down by
the courts. If, however, rights are broadly defined, or in absolute terms, most
Charter challenges would be decided at the second step by judges balancing com-
peting policy objectives. The only way to prevent judicial review from constantly
threatening established democratic priorities in such circumstances would be to
make it easier for the State to justify its legislation.”7
Justice Wilson coupled her one-step contextual approach with a strong en-
dorsement of the test developed in R. v. Oakes, which required the State to meet the
highest possible standard when attempting to defend its legislation under section
1.’L The refusal of those endorsing the contextual approach to start with a princi-
pled definition of rights, and their insistence on going straight to balancing, leaves
‘
4 5 See”Making of a Constitution” in Speeches, supra note 22 at 556.
‘,6See”Evidence Under the Charter” in Speeches, ibid. at 294.
47 See Hogg, supra note 22 at 813.
‘ See “Constitutional Advocacy”, supra note 52 at 269. Justice Wilson spoke of “clinging” to the
Oakes test out of a concern that the Charter not be “emasculated”. She was concerned that, “the shift
towards the much more flexible standard of reasonableness makes it increasingly likely that govern-
ments’ immediate objectives will take precedence over the rights and freedoms of the individual”
(ibid.).
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
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judges with the widest possible discretion. When that is coupled with a narrow in-
terpretation of the arguments available to government for saving its legislation un-
der section 1, the wide judicial discretion claimed by Justice Wilson under the con-
textual approach is left almost entirely unfettered.
Three cases illustrate Justice Wilson’s rejection of the abstract approach in fa-
vour of her contextual method. In B.C. Motor Vehicle Reference, Justice Lamer, as
he then was, attempted to define the words “fundamental justice” in section 7 of the
Charter. He held that “[t]he principles of fundamental justice are to be found in the
basic tenets of our legal system” and located these rules “in the domain of the judi-
ciary as guardians of the justice system”.”‘ While highly idiosyncratic, this was in-
tended to be a principled definition; it would have application in all cases in which
a violation of the right to fundamental justice was asserted. The principle that Jus-
tice Lamer adopted, however, was a judge-made principle. He expressly refused to
accept the principle that the legislators who drafted section 7 had in mind. The rec-
ord established unambiguously that the legislators intended fundamental justice to
be limited to the traditional procedural principles of natural justice and fairness.'”
In her speeches, Justice Wilson criticized Justice Lamer’s reasoning, his unwill-
ingness to meet “social, economic and political values head on” and his insistence
on channelling those values through “existing legal sources such as … provisions of
the Charter or the basic tenets of the justice system”. She noted that Justice
Lamer’s approach did not permit the Court to “address the role of the particular
piece of legislation in a context which goes beyond the purely legal”.’ In dismiss-
ing the use of principle as “abstract”, Justice Wilson was claiming that judges
should be free to decide cases unconstrained by traditional rules. She would give
judges absolute power to write the Constitution afresh, according to an individual
judge’s preferences, in each new case that arose.
In Re Public Service Employee, the issue was whether the freedom of associa-
tion provision of the Charter protected the right to bargain collectively and the right
to strike. Justice McIntyre, after indicating that the interpretation of all constitu-
tional documents was to be constrained by the language, structure and history of the
constitutional text, as well as by the history, traditions and underlying philosophy of
our society,”‘ concluded that collective bargaining and striking were not constitu-
tionally protected. Freedom of association protected the right of individuals to
come together for lawful pursuits; it did not create Charter rights for groups, which
were unavailable to individuals.”‘ Justice LeDain supported this reasoning and
added that the concept of freedom of association applied to a wide range of asso-
ciations with a wide range of activities. He maintained, however, that the legislature
“‘ B.C. Motor Vehicle Reference, supra note 89 at 503.
“‘ See ibid. at 501.
” “Court of Last Resort”, supra note 85 at 223-24.
” See Re Public Service Employee, supra note 26 at 394.
See ibid. at 398.
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R.E. HAWKINS & R. MARTIN – DEMOCRACYAND JUDGING
could not have intended to constitutionalize all the various activities of all the vari-
ous groups in society.'”
Justice Wilson criticized Justice LeDain for using an abstract rather than a
contextual approach:
The issue, for [Justice LeDain, writing for] the majority, was whether associa-
tional activities generally were constitutionally protected by s. 2(d), not
whether the special kind of associational activities forming the subject of the
dispute before us were protected by the section.35
She also said:
Once Justice LeDain had characterized the issue in that way, the answer to the
question whether the collective bargaining process was protected under the
Charter was obviously no. No one could think that the activities of a golf club,
for example, should be constitutionalized.’6
In the first step of the process, Justices McIntyre and LeDain defined freedom
of association in a principled way. Their definition (the right to associate and to
carry out lawful pursuits) would apply in every case regardless of the particular
factual context. By contrast, the contextual approach produces no principle of uni-
versal application. For example, using the contextual approach, one wonders why
the activities of a golf club are not also constitutionalized. The contextual approach
turns the first stage of Charter adjudication into a process whereby judges express
subjective value preferences, rather than one in which they elaborate principles.
This point is also illustrated by the Edmonton Journal case. In a four to three
decision, the Supreme Court held that certain provisions of the Alberta Judicature
Act’5 violated the Charter. All seven judges agreed that the impugned section of the
legislation violated freedom of expression; however, the three dissenting judges
held that the legislation could be saved under section 1. The provisions at issue
were designed to protect the privacy of litigants in matrimonial disputes by pro-
hibiting publication of some of the details of the dispute. Mr. Justice Cory wrote for
the majority. As the passage quoted below makes clear, at the first step of Charter
adjudication, he looked to the intention of the framers as a way of giving freedom
of expression a principled definition:
It is difficult to imagine a guaranteed right more important to a democratic so-
ciety than freedom of expression. Indeed a democracy cannot exist without that
freedom to express new ideas and to put forward opinions about the function-
ing of public institutions. The concept of free and uninhibited speech permeates
‘ See ibid at 390.
1 “Making of a Constitution” in Speeches, supra note 22 at 566.
16 “Extrinsic Evidence” in Speeches, supra note 22 at 652.
“‘ R.S.A. 1980, c. J-1.
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all truly democratic societies and institutions. The vital importance of the con-
cept cannot be over-emphasized. No doubt that was the reason why the framers
of the Charter set forth s. 2(b) in absolute terms which distinguishes it, for ex-
ample, from s. 8 of the Charter which guarantees the qualified right to be se-
cure from unreasonable search. It seems that the rights enshrined in s. 2(b)
should therefore only be restricted in the clearest of circumstances.15′
Justice Wilson in a separate, concurring opinion rejected the methodology em-
ployed by Justice Cory. She referred to it as an “abstract approach” by which the
“value sought to be protected by s. 2(b) of the Charter is determined at large”.’ 5
Instead, for her, freedom of expression took its meaning, in this context, from the
desire to preserve privacy in matrimonial disputes. Justice Wilson stated:
9
I do not disagree with my colleague [Justice Cory] that freedom of expression
plays that vital role in a political democracy. The problem is that the values in
conflict in the context of this particular case are the right of the litigants to pro-
tection of their privacy in matrimonial disputes and the right of the public to an
open court process. Both cannot be fully respected. One must yield to the exi-
gencies of the other. I ask myself therefore whether a contextual approach in
balancing a right to privacy against freedom of the press under s. 1 is not more
appropriate than an approach which assesses the relative importance of the
competing values in the abstract or at large.160
Justice Wilson tells us what freedom of expression means in the context of
matrimonial litigation. Her reasons, however, do not tell us what freedom of ex-
pression means in the entertainment context, the advertising context, the defama-
tion context, the tabloid context or any other context but the one before her. They
do not, and cannot, yield, therefore, a principled definition of freedom of expres-
sion that could be generalized to other cases.
The so-called abstract approach, which Justice Wilson rejected, is nothing other
than the purposive approach to interpretation embodied by the mischief rule. The
textual approach, which she also rejected, seeks to give words the ordinary meaning
or the common understanding which they conveyed when they were adopted. Jus-
tice Wilson did not feel bound by such meanings. Her problem, however, was that
she had to find some way of dealing with the words of the Charter. Her solution
was to dismiss them:
While [the contextual approach] acknowledges the legal framework of the
Charter, it emphasizes the context in which the dispute before the Court has
arisen rather than the text itself.
“8 Edmonton Journal, supra note 136 at 1336.
‘”9 Ibid. at 1352.
’60 Ibid at 1353.
161 “Decision-Making”, supra note 34 at 245.
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It recognizes that an analysis of the text itself to distil [sic] a meaning in the
abstract may not be particularly helpful and that it is only when an attempt is
made to relate the text to the context of the dispute that the social values en-
shrined in it start to come alive … The approach is pragmatic and functional
rather than theoretical and formal.62
Justice Wilson emptied the words in the Charter of meaning. The words were
open-textured, imprecise, flexible – words for the long haul: 3 ‘The rights and
freedoms guaranteed by the Charter are expressed in the broadest and most general
terms … [so that] the court must determine the content and substance of each of
these rights and freedoms”.’ The terms of the Charter were to mean “different
In other words, Justice Wilson gave
things in different settings at different times”.
herself the authority to have the Charter mean whatever she pleased.
Justice Wilson attacked the underlying assumption of the textual approach by
denying the possibility of ever determining legislative intent:
The textual approach focuses on the words of the constitutional document
as signifiers of legislative intent … which is the organizing principle of the rules
of statutory interpretation….
Now the emphasis on legislative intent as the reference point for Charter
interpretation undoubtedly serves an important function. It represents an effort
to solve the problem of the Court’s lack of political accountability by express-
ing a judicial deference to the will of the legislature. One may query, however,
whether the largely fictional notion of legislative intent is an appropriate solu-
tion when the Charter has explicitly designated the Court as the forum for
choosing from among a variety of policy options. Our critics may well say the
Court is once again refusing to face up to what it is doing and trying to pretend
that nothing has changed.’64
It is ironic that Justice Wilson would dismiss the idea that the text of the Charter
could have a determinate meaning, all the while asserting that that text “explicitly”
enjoined judges to choose from “among a variety of policy options”. She did not
cite Charter provisions that granted this power. Indeed, as set out above, the legis-
lative history of the Charter does not suggest that the courts were to be the forum
for choosing among a variety of policy options.
162 Ibid. at 247.
63 See “Extrinsic Evidence” in Speeches, supra note 22 at 643-44.
1
“The Charter (U. of S.)”, supra note 34 at 173.
” “Extrinsic Evidence” in Speeches, supra note 22 at 643.
“Decision-Making”, supra note 34 at 246-47. The “once again” reference is to the “frozen
rights” approach adopted in dealing with the Canadian Bill of Rights, S.C. 1960, c. 44, reprinted in
R.S.C. 1985, App. III [hereinafter Bill]. Judges refused to apply the Bill to fact situations unforeseen
at the time of the Bill’s adoption. Justice Wilson understood the problem, but she got the remedy
wrong. Ajudge who refuses to apply a democratically adopted law is as guilty of judicial revisionism
as a judge who makes up his or her own law.
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Justice Wilson adopted the standard critique of interpretivism made by some
American scholars:
[Interpretivism] presented some serious problems for United States
judges. How were they to know what the framers meant 200 years ago? Even if
they could actually talk to the framers of their constitution, would the framers’
intention emerge as uniform and clear? And what of modem constitutional
problems that hinge on issues that didn’t even exist two hundred years ago …
Why should a group of men (and I stress men) long since deceased be allowed
to constrain the progressive development of the American constitution? …
Let us ask ourselves what the United States framers’ intent was on the issue of
the rights of women. 67
There are four arguments here, all of which are supposed to lead to the conclu-
sion that judges are free to ignore the text of the Constitution. The first is that the
words have no inherent meaning; the second is that the notion of legislative intent
is ephemeral and subjective; the third is that times change; and the fourth is that the
Constitution was made by dead men. The fourth objection can be dealt with
quickly. The Charter was passed (for the most part) by men who are (for the most
part) still very much alive and who were voted into office by an electorate which
was half female and who received substantial argument from women – much of
which was heeded – on what should go into the Charter.”‘ In any event, many of
our laws were passed by dead men and we still consider them binding. The other
three objections are more serious.
First, the argument that the words used in the Constitution are too general to be
given a clear meaning is attractive to a judge who makes decisions on the basis of
personal preference, and who is, therefore, disinclined to look hard for the meaning
intended by the authors of the Constitution. In 1982, the concepts of freedom of
expression, fundamental justice, freedom of association and equality had a working
meaning for Canadians. If they had not, legislators would not have spent so much
time debating the precise wording of the Charter. The debate over wording was a
debate about making choices among alternative forms of wording. The meanings of
the various alternatives were clearly understood.
The debate over the wording of section 15 indicates that the word “equality”
was to have its usual meaning. Likes were to be treated alike; “unalikes” were to be
treated “unalike”, according to their differences. Any objective reading of the
words of section 15(1) suggests that the provision protects against arbitrary treat-
ment resulting from legislative distinctions not rationally related to legislative pur-
poses. Furthermore, the section is expressly made applicable to “every individual”,
yet Justice Wilson concluded that the notion of formal equality was not a part of
‘””‘Making of a Constitution” in Speeches, supra note 22 at 558.
” See Kome, supra note 108 for an account of the political lobbying by women that led to the
adoption of sectiorr28 of the Charter.
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R.E. HAWKINS & R. MARTIN – DEMOCRACY AND JUDGING
section 15(1). She concluded that only members of groups “suffering, political and
legal disadvantage” apart from the disadvantage posed by the challenged law were
entitled to claim equality rights.” The section does, in fact, enumerate a series of
groups which are to be protected from discrimination. The legislative debates show
that, in addition to those groups, other analogous groups were to be protected from
discrimination. The debates also indicate the criteria by which analogous groups
were to be determined. Those criteria do not restrict equality rights only to those
who have suffered social, political and legal disadvantage sometime in the past.'”
Justice Wilson effectively stripped the word “equality” of the meaning it was gen-
erally understood to have in 1982 and replaced it with the meaning she wanted it to
have.
In Morgentaler, Wilson adopted a similar approach in dealing with the words in
section 7 of the Charter. One of the issues in the case was whether section 251 of
the Criminal Code, which restricted a woman’s access to abortion, violated a
woman’s right not to be deprived of liberty except in accordance with the principles
of fundamental justice. Justice Wilson held that the section violated a woman’s
right to liberty by preventing her from deciding for herself whether to terminate her
pregnancy.”‘ At the beginning of the judgment, Justice Wilson expressly declined to
set out any general principle that would “delineate the full content of … liberty”.
“This would be an impossible task,” she wrote, “because we cannot envisage all the
contexts in which such a right might be asserted.” Instead, she believed that she
was asked to “define the content of the right in the context of the legislation under
attack.”‘”‘ Using the contextual approach, “liberty” could potentially mean whatever
a judge feels it should mean to advance his or her political goals in any particular
context.
Focusing on the need to respect “individual decision-making in matters of fun-
damental personal importance,” Justice Wilson concluded that “the right to liberty
contained in s. 7 guarantees to every individual a degree of personal autonomy over
important decisions intimately affecting their private lives.’ ‘ .3 Decisions having
“profound psychological, economic and social consequences”,'” decisions of an
“intimate and private nature”,”7 were protected by “an invisible fence over which
the state will not be allowed to trespass”.’. Justice Wilson also held that because a
woman’s decision to seek an abortion was “a matter of conscience”, it was also
protected by section 2(a) of the Charter, which guarantees freedom of conscience
“9 Turpin, supra note 104. See also McKinney, supra note 63 at 390-92.
70 See “Interpretivism”, supra note 107.
“‘ See Morgentaler, supra note 27 at 172.
,n Ibid at 162.
‘ Ibid at 171.
” IbL
“‘ Ibid at 172.
’76 Ibk at 164.
MCGILL LAW JOURNAL/REVUE DE DROITDE McGILL
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and religion.” Consequently, any deprivation of the right to an abortion would
violate the principles of fundamental justice.
Applying this approach, the word “liberty” could encompass any decision that
an individual might make of an “intimate and private nature” and that profoundly
affected his or her psychological, economic or social well-being. This definition is
very broad and very subjective. How is a court to determine if a decision is of an
“intimate and private nature”? As Justice McIntyre pointed out in his dissent, under
this definition, much of the Income Tax Act,”‘ which many Canadians feel pro-
foundly interferes with their priorities and aspirations, would be unconstitutional.”‘
Justice Wilson used a similar technique when dealing with the word
“conscience” in Morgentaler. She failed to explain why the right to an abortion is a
“matter of conscience and religion”. Indeed, could one not argue that everything is
potentially a matter of conscience? The effect of Justice Wilson’s decision in Mor-
gentaler is to constitutionalize the right to an abortion regardless of any procedure,
however fundamentally fair or just, that the legislature might devise as a means of
restricting abortion.”0 Justice Wilson treated section 7 as a substantive due process
section,’82 ignoring the common understanding that this section carried at the time it
was adopted.
Moreover, as Justice McIntyre pointed out in his dissent, those who drafted the
Charter specifically discussed whether its words would remove the abortion issue
from Parliament and hand it over to the courts: no one suggested that the words ul-
timately chosen had that effect. Justice McIntyre cited an exchange on this issue
from the Special Joint Committee in the House of Commons.” Equally persuasive,
he could have cited a similar exchange in the House of Commons in which the
Prime Minister reassured a Member of the Opposition by indicating to him that the
Charter had nothing to say about the abortion issue and that the matter was one for
the House to decide.’
The contextual approach was not the only approach available in deciding Mor-
gentaler. Justice McIntyre, in dissent, pointed out that the text of the Charter was
silent on the issue of abortion even though the issue was a matter of public contro-
‘”Ibid at 175.
27 S.C. 1970-71-72, c. 63.
‘”See Morgentaler, supra note 27 at 142.
… Justice Wilson allowed that some restriction on abortion, while violating a woman’s section 7
rights, might be saved as “reasonably and demonstrably justifiable” under section 1.
.8, In this she follows Chief Justice Lamer in B.C. Motor Vehicle Reference, but the legislative his-
tory on this point is conclusive in the opposite direction (see: Hogg, supra note 22 at 1291;
“Interpretivism”, supra note 107).
,s Cited in Morgentaler, supra note 27 at 143-44.
283 Prime Minister Trudeau stated: “The Charter is absolutely neutral on this matter” (House of
Commons Debates (27 November 1981) at 13438).
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R.E. HAWKINS & R. MARTIN – DEMOCRACYAND JUDGING
versy at the time the Charter was adopted.'”‘ Referring to the contextual approach,
he observed:
[The Supreme Court] has enjoined what has been termed a “purposive ap-
proach” in applying the Charter and its provisions. I take this to mean that the
Courts should interpret the Charter in a manner calculated to give effect to its
provisions, not to the idiosyncratic view of the judge who is writing … That
Charter interpretation is to be purposive necessarily implies the converse: it is
not to be “non-purposive”. A court is not entitled to define a right in a manner
unrelated to the interest which the right in question was meant to protect … The
approach, as I understand it, does not mean that judges may not make some
policy choices when confronted with competing conceptions of the extent of
rights or freedoms. Difficult choices must be made and the personal views of
judges will unavoidably be engaged from time to time. The decisions made by
judges, however, and the interpretations that they advance or accept must be
plausibly inferable from something in the Charter. It is not for the courts to
manufacture a constitutional right out of whole cloth.’ 8′
Even if one were persuaded that the words of the Charter had no inherent
meaning it does not follow that judges, under the guise of interpreting the text, can
write their own values into the Constitution in order to strike down democratically
enacted legislation. Our conclusion is just the opposite. If the words of the Consti-
tution do not prohibit the legislative activity in question, the legislation must stand.
As the U.S. jurist Robert Bork pointed out, where the law stops, the judge must
stop:
Oddly enough, the people who relish agnosticism about the meaning of our
most basic compact do not explore the consequences of their own notion. They
view the impossibility of knowing what the Constitution means as justification
for saying that it means anything they would prefer it to mean. But they too
easily glide over a difficulty fatal to their conclusion. If the meaning of the
Constitution is unknowable, if, so far as we can tell, it is written in undecipher-
able hieroglyphics, the conclusion is not that the judge may write his own
Constitution. The conclusion is that judges must stand aside and let current
democratic majorities rle, because there is no law superior to theirs.”
The second argument that Justice Wilson put forward for going beyond the or-
dinary meaning of the text was that we cannot know the intent of its framers. The
argument is that no one can ever determine an individual legislator’s intention, and
even if one could, a legislature, as a collectivity, could have no specific intent. In
the case of the Charter, this problem is exacerbated because of the participation of
a number of different legislative bodies. If this objection were valid, it would apply
to the search for legislative intent in all statutory interpretation.”
This argument is expanded upon in Morgentaler, supra note 27 at 141-46.
‘8 Ibid at 140-41 [citations omitted].
‘ Bork, supra note 61 at 151, 166-67.
‘ Justice Wilson did not have much confidence in that endeavour either. In a speech on statutory
interpretation, she said:
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Justice Wilson is here fighting a straw man. The suggestion that we are some-
how seeking to determine the subjective intentions of any legislator, or any group
of legislators, is one which “no one holds, one that is not only indefensible but un-
defended.”” 8 When one talks of legislative intent, whether dealing with a statute or
with a constitution, one is referring to the ordinary meaning that the words had at
the time the legislation was adopted. This common understanding “is manifest in
the words used in secondary materials, such as debates at conventions, public dis-
cussions, newspaper articles, dictionaries in use at the time, and the like..'”. It may
also be decipherable through the scheme of the Charter and through the usual can-
ons of statutory interpretation, such as the mischief rule.
Justice Wilson’s third argument against the textual approach is one that has a
long lineage in Canadian constitutional law. She suggests that because the authors
of the Constitution could not have thought of, or could not have foreseen, modem
circumstances, the words of the Constitution must be given a “progressive interpre-
tation”, lest the Constitution lose its relevance. If the doctrine of progressive inter-
pretation means, as it must, that judges are to take the principles of the Constitution
as they find them and apply those principles to new fact situations, then there is
nothing remarkable about her objection. This approach is appropriate not only for
the Constitution but for every piece of legislation and especially those statutes
which are expected to remain in operation for a long time. Legislators expect this
interpretive approach will be taken when they pass legislation and adopt a constitu-
tion. This is why we have judges: if legislators could foresee all possible situations,
a computer with sophisticated software could be appointed to the bench. It is the
job of the judge to determine when a principle contained in a law applies, and when
it does not; but it is not the judge’s job to manufacture the principle according to the
judge’s personal predilections.
If, by contrast, Justice Wilson is suggesting that changing circumstances give
judges the authority to rewrite the Constitution at will, she is mistaken. It is one
thing to apply a principle to new fact situations and, in the course of applying that
principle, to develop the law in a minor, interstitial way. It is another to create a
whole new principle. On this point, Bork has made the following comment:
Nevertheless, one must ask oneself [sic] whether our traditional approach to statutory
interpretation really does disclose Parliament’s intention if indeed such a thing exists. I
have been harbouring the suspicion for some time now that the sole virtue of a collec-
don of technical rules from among which we may pick and choose at will is not that
they lead us to a result but that they support a result that we have already reached. The
very fact that the plain meaning rule will usually lead us to quite a different result from
the mischief rule suggests to me that we use them as a crutch to give legitimacy to
something no nobler than our “gut reaction” (“Extrinsic Evidence” in Speeches, supra
note 22 at 653).
18 Bork, supra note 61 at 162.
,9 Ibid at 144. This is the normal course in interpreting law.
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No doubt there is a spectrum along which the adjustments of doctrine to take
account of new social, technological, and legal developments may gradually
become so great as to amount to the creation of new principle. But that obser-
vation notes a danger, it does not justify letting the process slide out of control.
Judges and lawyers live on the slippery slope of analogy; they are not supposed
to ski it to the bottom. … When we say that social circumstances have changed
so as to require the evolution of doctrine to maintain the vigour of an existing
principle we do mean that society’s values are perceived by the judge to have
changed so that it would be good to have a new constitutional principle.”o
In any event, the notion of “progressive interpretation” is irrelevant when it
comes to the Charter. Justice Wilson was appointed to the Supreme Court the same
month that the Charter became part of the Canadian Constitution. There was no
reason that the principles contained in that document, as reflected in its text, could
not be applied. They did not have to be abandoned in favour of principles that
judges found more agreeable. Times, it is true, change. But they had not changed in
respect of the Charter that Justice Wilson was required to interpret.
Words, even words which express broad concepts, have commonly understood
meanings that should constrain judges. It is self-evident that the judge’s mission is
to find the meaning carried by the words. We successfully communicate with each
other each day. Our democracy is premised on the notion that the will of the people,
through its elected representatives, can be communicated to citizens who are ex-
pected to abide by the law of the state. The textual approach and the abstract ap-
proach make objective judging possible because they respect a will that is external
to the judge. By repudiating these approaches, and by substituting a contextual ap-
proach, which makes the outcome of the case entirely dependent upon what a given
judge thinks is fair and just in a particular situation, Justice Wilson created an en-
tirely subjective theory of interpretation.
As discussed in Part II of this article, Justice Wilson’s understanding of the role
of the post-Charter Court was one which denied the democratic principle. Her
contextual approach to interpretation also denied the liberal principle. In order to
understand how this is so, Wilson’s contextual approach can itself be contextual-
ized. A central element of the liberal principle is the notion that all citizens are
equally subject to the law. Wilson used context as the basis for denying this. She
focused, instead, on the personal characteristics of the litigants, especially their sex,
as Morgentaler makes clear. The result is that “good guys” win and “bad guys”
lose.
’90 Ibid. at 169.
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IV. Judicial Integrity
The job of the judge is not to embrace an ideology but
to render afair judgment. … I can tell you that as chief
justice, I am nervous of a judge who is very popular; I
despair of one who wants to be popular 9
Chief Justice Lamer
Justice Wilson developed her own political agenda while on the Supreme
Court. As a general matter, she was concerned about the threat posed by “big gov-
ernment”, and about the freedom of groups and individuals. These concerns could
have produced a generous reading of Charter rights; however, her ideology did not
treat all individuals or all groups equally. She was particularly concerned about
those who, in her view, had suffered historical, social or political disadvantage.'”
This concern tended to produce a selective application of Charter rights.
Justice Wilson was the first woman to sit on the Supreme Court of Canada.
Upon taking her oath of office, she spoke of becoming the focus of the hopes and
aspirations of those who saw the appointment of a woman as the fulfilment of a
long-standing dream.19 This was the culmination of a series of “firsts” for Bertha
Wilson: the first woman to be hired by the large Toronto firm of Osler, Hoskin &
Harcourt; the first lawyer to head that firm’s research department; the firm’s first
female partner; and the first woman to be appointed to the Ontario Court of Ap-
peal.” A month after leaving the bench, at a ceremony in which she accepted the
President’s award of the Women’s Law Association of Ontario, Justice Wilson ob-
served, upon looking back, what pleased her most was that “I am the last of the
firsts.”,M
“‘ Lamer C.J.C. (Address to the Annual Meeting of the Canadian Association of Provincial Court
Judges, St. John’s, Newfoundland, Canada, 25 September 1993), quoted in C. Schmitz, “Judges
shouldn’t use ‘trivial or instinctive appeals to judicial independence’ to reject reform: Lamer” The
Lawyers’ Weekly (8 October 1993) 6.
‘9’ See “Charter in Private Litigation”, supra note 106. In March 1993, Justice Wilson spoke of the
utility of the Charter in promoting women’s values. She argued that the Andrews interpretation of
section 15(l) meant that the section was no longer concerned with rights of equality (as it says) but
rather dealt with the problem of inequality (and, hence, the problem faced by women). Its emphasis
was not on arbitrary treatment, but, rather, on the individual’s current and historical disadvantage.
‘The court rejected a neutral, abstract concept of inequality,”‘ she said, “‘and focused instead on the
historical reality of severely disadvantaged groups in society’
(“Charter in Private Litigation”, ibid.).
This opened the door for judicial relativism, in Justice Wilson’s case favouring women.
193 See B. Wilson, “The Honourable Madame Justice Bertha Wilson” (Ceremonial remarks made
upon taking the oath, Supreme Court of Canada, 30 March 1982) (1982) 16 L. Soc. Gaz. 172 at 179.
“” Then Justice Minister and Attorney-General of Canada Kim Campbell listed these firsts in a
speech upon Wilson’s retirement from the Supreme Court (“Retirement Ceremony”, supra note 82 at
11).
‘9’ B. Wilson, “Acceptance Speech – The President’s Award, The Women’s Law Association of
Ontario” (Toronto, Ontario, February 1991) in Speeches, supra note 22, 719 at 722. She overlooked
the fact that one day the Supreme Court will have its first female Chief Justice.
1995]
R.E. HAWKINS & R. MARTIN – DEMOCRACYAND JUDGING
While on the Court, Justice Wilson considered herself “a moderate feminist”.’
An interviewer wrote that the groundwork for Justice Wilson’s feminist education
came from her role as a parish minister’s wife in Scotland. Justice Wilson explained
during the interview that women’s issues were a topic of her parish study group: “I
was part of [a] group that met regularly to consider to what extent religious doctrine
and dogma had evolved because of men, the effect of the priest and theologians
being male.”‘” Prior to becoming a judge, Justice Wilson wrote much of the brief
that the United Church of Canada presented to the Royal Commission on the Status
of Women. She also chaired the committee on abortion of the United Church which
advocated a “careful pro-choice position”, a fact which she did not acknowledge in
her judgment in Morgentaler.”9
In 1990, Justice Wilson presented a lecture entitled “Will Women Judges Really
Make a Difference?” It concluded that they would, for four reasons. First, the ap-
pointment of women to the Bench would help “shatter stereotypes about the role of
women in society that are held by male judges and lawyers, as well as by litigants,
jurors, and witnesses”. ‘” Second, it would help preserve the public trust if judges
were perceived as representative of the diversity of the people being judged.”s
Third, it would be easier for women counsel to appear before a female judge.”0 ‘ Fi-
nally, the appointment of women judges would have an effect on the process of ju-
dicial decision-making and on the substance of the law, particularly in areas such as
Essayist Sandra Gwyn, the first journalist to interview Justice Wilson, claimed that Justice Wil-
son knew she would never have gotten to the Ontario Court of Appeal had she not been.a woman (see
S. Gwyn, “Sense & Sensibility” Saturday Night (July 1985) 13 at 17). In the same article, Gwyn
noted that distinguished Toronto lawyer Pierre Genest, Mr. Justice Charles Dubin of the Ontario Court
of Appeal and Justice Wilson, were all considered in 1982 for the vacant Supreme Court seat. Gwyn
cites one insider as saying: “‘[T]he women in [Prime Minister Trudeau’s] office got to him”‘ (ibid at
18). Wilson told Gwyn that she hoped, due to her age, not to get the appointment but knew that if she
were called she would accept: “Too many women were counting on me’ (ibid).
One thinks of the following words which Chief Justice Laskin delivered upon joining the Su-
preme Court of Canada:
When I took my seat on the Supreme Court of Canada I told my colleagues and others
who attended the induction ceremony that (1) I had no expectations to live up to save
those I placed upon myself; (2) 1 had no constituency to serve save the realm of reason;
(3) 1 had no influences to dispel unless there was a threat to my own intellectual disin-
terestedness; and (4) I had no one to answer to save my own conscience and my per-
sonal standards of integrity (B. Laskin, “The Institutional Character of the Judge”
(1972) 7 Isr. L. Rev. 329 at 330).
“Sense & Sensibility”, supra note 195 at 19.
‘n S. Lightstone, “Bertha Wilson: A personal view on women and the law” National
(August/September, 1993) 12 at 14 [hereinafter “A personal view”].
“Sense & Sensibility”, supra note 195 at 19.
B. Wilson, “Will Women Judges Really Make a Difference?” (Fourth Annual Barbara Betcher-
man Memorial Lecture given at Osgoode Hall Law School, Toronto, Canada, 8 February 1990)
(1990) 28 Osgoode Hall L.J. 507 at 517 [hereinafter “Women Judges”].
‘ See ibid. at 517-18.
… See ibid. at 518.
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tort, criminal and family law.” She argued that men and women have different ex-
periences, they think differently and they approach law differently because of their
gender differences.’ 3
Justice Wilson’s speech has been described as a “cry from the soul”.” It was
her coming out on the issue of sexual bias in the legal system. At the start of her
Osgoode speech, she spoke of the “rejoicing of women in her appointment”. She
went on to say that although women might have finally felt represented, she was
concerned that the nature of judicial office and the incremental nature of change in
the law would constrain her attempts to respond to the changes women sought.”‘ It
was not just the nature of judicial office and the pace of change in the law that re-
stricted Justice Wilson in the promotion of her cause. Her sense of strategy also
suggested that one bide one’s time:
The candour with which Wilson acknowledges gender bias within the legal
profession is a recent phenomenon. She explains that, at the time of her ap-
pointment to the Supreme Court of Canada, “I couldn’t have (spoken out) be-
cause I think that there was a fair measure of apprehension on the part of the
members of the court about having a woman join that group. I realized that
there was going to have to be a period of probation, of having to prove myself.
“I don’t believe when I went on the court that the male judges took it for
granted that I was going to be able to do the job. I think, maybe, that the view
was contrary. So, to go on there and start throwing your weight around when
you were, in their eyes, a novice… Well, you have to gain acceptance through
your ability, as they perceive it first and then they will listen to you… A lot of
women, I think, are of the view that as soon as you get into a group, you can
start trying to change things. I don’t think it works. I think you have to go
through this process of proving yourself first.”204
The Osgoode speech was a “cry from the soul” which had been building for
some time. Early in her career on the Supreme Court of Canada, Justice Wilson
spoke out on the subjugated status of women. In April 1983, she told a Winnipeg
audience that the main obstacle to the implementation of the sexual equality provi-
sions of the Charter was social attitudes conditioned by the church, school and
family; men were the villains. She spoke of how “[t]he history of canon law reveals
the subordinate and inferior status to which woman is relegated when her nature is
defined by men.” 7 She saw the family and the school as the site of sexual stereo-
typing, but fortunately, in her opinion, the feminist movement was changing this. 0′
.. See ibid at 512,519-20.
23 See ibid at 519.
z “A personal view”, supra note 197 at 14.
See “Women Judges”, supra note 199 at 507. This could be the language of a newly-elected
Member of Parliament anxious to achieve reform.
“A personal view”, supra note 197 at 13-14.
207 B. Wilson, “Law in Society: The Principle of Sexual Equality” (Lecture delivered at Winnipeg,
Canada, 9 April 1983) (1983) 13 Man. L.J 221 at 228 [hereinafter “Principle of Sexual Equality”].
200 See ibid at 225-6. She recounted the following anecdote, perhaps of her own creation,
1995]
R.E. HAWKINS & R. MARTIN – DEMOCRACYAND JUDGING
In January 1988, in Morgentaler, she wrote of women’s unique experience:
It is probably impossible for a man to respond, even imaginatively, to such a
dilemma not just because it is outside the realm of his personal experience
(although this is, of course, the case) but because he can relate to it only by
objectifying it, thereby eliminating the subjective elements of the female psy-
che which are at the heart of the dilemma. As Noreen Burrows … has pointed
out in her essay on “International Law and Human Rights: the Case of
Women’s Rights”, in Human Rights: From Rhetoric to Reality … [tlhe more re-
cent struggle for women’s rights has been a struggle to eliminate discrimina-
tion, to achieve a place for women in a man’s world, to develop a set of legis-
lative reforms in order to place women in the same position as men … It has not
been a struggle to define the rights of women in relation to their special place
in the societal structure and in relation to the biological distinction between the
two sexes. Thus, women’s needs and aspirations are only now being translated
into protected rights. The right to reproduce or not to reproduce which is in is-
sue in this case is one such right and is properly perceived as an integral part of
modem woman’s struggle to assert her dignity and worth as a human being.2′
The Osgoode speech was the culmination of these ideas. In that speech, she
stated:
Gilligan’s work on conceptions of morality among adults suggests that
women’s ethical sense is significantly different from men’s. Men see moral
problems as arising from competing rights; the adversarial process comes eas-
ily to them. Women see moral problems as arising from competing obligations,
the one to the other; the important thing is to preserve relationships, to develop
an ethic of caring. The goal, according to women’s ethical sense, is not seen in
terms of winning or losing but, rather, in terms of achieving an optimum out-
come for all individuals involved in the moral dilemma. It is not difficult to see
how this contrast in thinking might form the basis of different perceptions of
justice.
in one speech:
Mother and father also constitute role models for their children and the child subcon-
sciously absorbs the values implicit in the parents’ conduct. This is well illustrated by
the following anecdote. The scene is set in a fairly expensive restaurant to which a man
has taken his wife and six year old daughter for dinner. The black tie waiter is politely
taking the order. “Yes, I think I will have the soup and veal; my wife is rather fond of
fish so she will have the broiled lobster; and Suzanne here will have the child’s portion
of chicken.” The waiter then turned to the wife “And for you, Ma’am?” “Yes, I think
I’ll have the lobster as my husband suggested.” The waiter then turned to the young
girl “And you, young lady, what will you have?” Before she could answer the husband
interjected “The child’s portion of chicken for her.” Completely ignoring him the
waiter insisted “Suzanne, what would you like?” Astonished, she turned to her father
and blurted out “Gee, Daddy, he thinks I’m real!” (“Principle of Sexual Equality”, ibid
at 226).
See also B. Wilson, “Sexual Equality Before and After s. 15” (Address to University of Calgary
Law School, Calgary, Canada, March 1985) in Speeches, supra note 22, 341.
2′ Morgentaler, supra note 27 at 171-72 [citation omitted].
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There is merit in Gilligan’s analysis. In part, it may explain the traditional
reluctance of courts to get too deeply into the circumstances of a case, their
anxiety to reduce the context of the dispute to its bare bones through a complex
system of exclusionary evidentiary rules. This ig one of the characteristic fea-
tures of the adversarial process. We are all familiar with the witness on cross-
examination who wants to explain his or her answer, who feels that a simple
yes or no is not an adequate response, and who is frustrated and angry at being
cut off with a half-truth. It is so much easier to come up with a black and white
answer if you are unencumbered by a broader context which might prompt
you, in Lord MacMillan’s words, to temper the cold light of reason with the
warmer tints of imagination and sympathy.
Gilligan’s analysis may also explain the hostility of some male judges to
permitting intervenors in human rights cases. The main purpose of having in-
tervenors is to broaden the context of the dispute, to show the issue in a larger
perspective or as impacting on other groups not directly involved in the litiga-
tion at all. But it certainly does complicate the issues to have them presented in
polycentric terms.”‘
One must ask some simple questions here. How does Justice Wilson know
these things? How does she know that women’s “ethical sense” is “significantly
different” from men’s? How does she know that a man cannot “respond” to the
ethical “dilemma” faced by a pregnant woman contemplating an abortion? How
does she know there is something called the “female psyche”? The answer would
seem to be either because she was convinced by the work of Carol Gilligan or that
she just knows. This will not do. Justice Wilson delivered herself of observations
about men and women that have profound social and political, not to mention legal,
significance. Surely, a more solid intellectual foundation than a single book, which
has been much criticized,2″‘ is required.
Justice Wilson’s logic lapses into solipsism at this point. When she argues that a
man cannot understand the ethical dilemmas faced by a woman, she is really argu-
ing that a person of one sex cannot understand the way a person of the other sex
thinks. If that assertion is correct, then she, as a woman, cannot know how a man
thinks. On her own logic, she cannot know whether a man can respond to a
woman’s dilemma.
In raising the issue of the representative character of the bench, Justice Wilson
raised an issue more profound than the question of whether women should be rep-
resented on the Court in proportion to their qualified numbers. No one can seri-
ously doubt that they should be. The judiciary should reflect society as a whole, but
210 “Women Judges”, supra note 199 at 520-21 [footnotes omitted]. Wilson is relying on C. Gilligan,
In a Different Voice: psychological theory and women’s development (Cambridge, Mass.: Harvard
University Press, 1982).
21’ A summary of Gilligan’s ideas by a feminist Canadian lawyer can be found in C. Boyle, “The
Role of the Judiciary in the Work of Madame Justice Wilson” (1992) 15 Dalhousie L.J. 241 at 245.
For criticism of Gilligan’s ideas see e.g. C. Hoff Sommers, Who Stole Feminism? How Women Have
Betrayed Women (New York: Simon and Schuster, 1994) at 151-54 and the works cited therein.
1995]
R.E. HAWKINS & R. MARTIN- DEMOCRACYAND JUDGING
it should represent no one.”2 By suggesting that women should be represented be-
cause they think differently from men, Justice Wilson has simply extended the logic
of her thesis, reflected in her contextual approach to interpretation, that judging is
an inherently subjective activity. The theory is complete: the role, the method and
the membership of the Court are all political in nature. It is this combination which
makes Justice Wilson’s theory of judicial review incompatible with democracy.
If one believes, as Justice Wilson did, that cases are to be determined not by
principle but by their context, which includes the personal characteristics of the liti-
gants, and that what counts is a subjective appraisal of the dispute, then one must
necessarily believe that the personal characteristics of the judge deciding the matter
also count for a great deal. If context is the touch-stone, then the fact that the judge
has lived the contextual experience in issue is central. One judges not only on the
basis of who the litigant is (the context) but, also, on the basis that one has walked
in the litigant’s shoes and shared the litigant’s burdens and aspirations. The rights of
women are determined not by reference to abstract standards but, rather, by
women’s reality and by judges who have lived that reality. The contextual approach
seems to have been designed for the politically-committed judge. The court takes
on all of the trappings of a legislature except, of course, that it is made up of judges
who are unelected and unaccountable to the citizens of the country.”‘
Apart from the anti-democratic nature of Justice Wilson’s theory of judicial re-
view, it also raises another issue related to the unaccountable exercise of power by
the judiciary. Judges are required to exercise that power, to the furthest extent hu-
manly possible, impartially. On taking the judicial oath of office, one must strip
one’s self of personal preconceptions in order to hear cases dispassionately and de-
cide them without prejudice. Justice Wilson was aware of this. She began her Os-
goode speech with apparent approval of this concept, by citing a number of
authorities on the integrity of judging. Their general conclusion was that the judge
must not approach his or her task with preconceived notions about law or policy,
21 If one believes that judging is an activity constrained by the law, and that judges are not free to
do anything they like, then not only is the identity of an individual litigant irrelevant to the decision-
making process but so also are the personal characteristics of the judge. The only facts that matter are
those that are rationally related to the application of the legal principle in issue. The only judicial
characteristics that matter are those that relate to the competence and impartiality of the judge. Perfect
objectivity can never be achieved. It is enough to protect democracy, however, if judges do their best
to recognize and restrain the exercise of their personal prejudices.
We expect our judiciary to broadly reflect the population eligible to serve as judges not because
the individual judge is a delegate of any particular constituency but, rather, because an unrepresenta-
tive bench would suggest bias in the selection of judges. It would be a sign that criteria unrelated to
competence were being used in the selection process. This, in turn, would raise concerns about judi-
cial neutrality.
213 Parenthetically, the notion that judges should represent different constituencies is unworkable.
The bench is not large enough to accommodate the different “views of the world” from the different
perspectives of men, women, pregnant women, heterosexuals, homosexuals, young, old, handicapped
and so on. The electoral process –
is conceived on a scale to do this (see
“Women Judges”, supra note 199 at 519).
and Parliament itself-
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[Vol. 41
with personal prejudice against parties or issues or with bias towards a particular
outcome.2 ‘
She also doubted whether it was possible for men or women to overcome their
biological and experiential prejudices.”‘ Just as she could not accept that external
principles could give content to Charter rights, she could not accept that an abstract
standard of impartiality could govern judicial conduct. Her solution for giving
content to rights was to adopt a subjective balancing technique. Similarly, her solu-
tion for creating an impartial bench was to balance judges of one subjectivity
against judges of another. Rather than acknowledge that judges are the product of
their unique experience and must struggle to recognize and transcend their biases,
she decided that the only course was to acquiesce in subjectivity. Justice Wilson
was, in fact, recommending the creation of a legislature, that is, a body which,
ideally, brings together persons with differing ideologies, experiences and back-
grounds and, in the process of balancing these differences, creates laws.2
While a judge, Justice Wilson spoke out on the issue of sexual discrimination.
Her ideas on the subjugation of women by men were current, political and highly
controversial. In the Charter era, particularly after the equality provisions came into
effect, the ideological views espoused by Justice Wilson could, and did, have a di-
rect bearing on issues likely to come before the courts. In adjudicating the Berger
affair in 1982, ‘ the Committee of Investigation of the Canadian Judicial Council
reached the following conclusion:
“We say again if a judge becomes so moved by conscience to speak out on a
matter of great importance, on which there are opposing and conflicting views,
then he should not speak with the trappings and from the platform of a judge
but rather resign and enter the arena where he, and not the judiciary, becomes
not only the exponent of those views but also the target of those who oppose
them.” 2’8
214 See ibid. at 507-508.
2,5 See ibid at 515-16.
216 Cogent criticism of this view can be found in J. Smith, “Executive Appointment of the Judiciary:
A Reconsideration” in Ontario Law Reform Commission, ed., Appointing Judges: Philosophy, Poli-
tics and Practice (Toronto: Queen’s Printer, 1991) at 189.
“‘7 Justice Berger commented publically and critically on the negotiations between the Prime Minis-
ter and the Premiers over the inclusion of native rights in the Charter at the time the provisions of the
Charter were being negotiated. Subsequently, the Canadian Judicial Council strongly criticized Jus-
tice Berger for becoming involved in a matter of great political controversy (see J. Webber, “The
Limits to Judges’ Free Speech: A Comment on the Report of the Committee of Investigation into the
Conduct of the Hon. Mr Justice Berger” (1984) 29 McGill L.J. 369).
… Quoted in EL. Morton, Law, Politics and the Judicial Process in Canada (Calgary: University of
Calgary Press, 1984) at 109. Chief Justice Laskin made it crystal clear in a speech to the Canadian
Bar Association on September 2, 1982, that the impartiality, independence and integrity of ajudge are
compromised if he or she speaks out on a political issue (quoted in Morton, ibid. at 115).
Justice Robins, of the Ontario Court of Appeal, argued that Chief Justice Laskin’s concerns were
even more relevant in the Charter era. In a debate with Justice Sopinka of the Supreme Court
R.E. HAWKINS & R. MARTIN – DEMOCRACY AND JUDGING
19951
Conclusion
When Justice Wilson argued for flexibility in law and for the contextual ap-
proach, she was really arguing for the freedom to decide cases in accordance with
her own preferences. We argue that she believed the Charter had turned the Court
into a political body, a kind of unaccountable legislature. The Court’s role was to
constitutionalize the content that judges gave to rights; the Court’s method was to
elevate judicial value preferences into law; the Court’s membership was to repre-
sent the different social groups with whom they shared common characteristics.
Justice Wilson’s philosophy of judicial review demanded that judges be con-
strained only by their personal opinions. It is a philosophy which has nothing to do
with principle, nothing to do with the rule of law and nothing to do with democ-
racy. It turns the Court into an organ of naked power, and contravenes both the let-
ter and the spirit of the Charter.
Justice Wilson has been the object of adulation by fellow lawyers and by jour-
nalists. The nature of that adulation can be gleaned by reading volume 15 of the
Dalhousie Law Journal, published in 1992. This was a collection of papers given a
year earlier at a symposium to honour Justice Wilson. Former Chief Justice Brian
Dickson set the tone for the other papers when he referred to her as a “Trailblazer
for Justice”…. He called concerns about Justice Wilson’s behaviour as a judge a
“facile exercise in labelling”‘
and characterized debate over the proper limits of
judicial activism as “increasingly sterile”.”‘ More to the point, Justice Dickson said
that Justice Wilson’s judicial philosophy, which he described as a “vision”,
“embodies a distinctive and profoundly democratic conception of the role of a
judge.””:
This volume of the Dalhousie Law Journal is in fact entitled The Democratic
to judging as
Intellect. One can only describe Justice Wilson’s approach
“democratic” by utterly transforming the meaning of that word. This is precisely
what James Macpherson, one of the contributors to the volume, did. He observed:
of Canada, he stated:
Appearances count, perceptions are important. By speaking out about issues of this
nature, the danger is that the judge may call into question in the public mind whether
he or she can put aside the personal beliefs and rule even-handedly if and when the is-
sue comes before the court.
This is particularly so at this juncture in our constitutional history of Canada where
more and more social issues can, and do, become legal issues (“Sopinka, Robins lock
horns over right of judges to speak” The Lawyers’ Weekly (26 July 1991) 2).
dicial Conduct (Cowansville, Qu6.: Yvon Blais, 1991) c. 4.
See also, Canadian Judicial Council, “When the Judge Makes a Speech” in Commentaries on Ju-
2 9 B. Dickson, “Madame Justice Wilson: Trailblazer for Justice” (1992) 15 Dalhousie L.J. 1.
220 Ibid. at 15.
22. Ibid. at 18.
, Ibid. at 2 1.
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[M]any of the major political issues of our times, national and provincial, have
been “constitutionalized”. They have not been, as some have contended, re-
moved from the political arena. Politicians and governments still must address
and try to resolve them. However, the issues no longer stay or end in the politi-
cal arena. They move from there to the courts, especially the Supreme Court of
Canada, because the Charter gives people unhappy with a result in the political
arena an opportunity to challenge that result in the judicial arena.’22
What a strange notion of democracy. “Democracy” now means disregarding the
legislatures; democracy means you should go to the courts if you cannot get what
you want through the political process. ‘
Politicians communicate through their speeches; judges through their decisions.
Justice Wilson was the first Justice of the Supreme Court of Canada to use her pub-
lic speeches as a vehicle equal in importance to her reasons for decision for ex-
pressing her views. The subjective nature of her decisions – wherein she
“legislated” her personal views –
did real damage to the democratic choices of
our elected representatives. Worse, the political nature of her speeches – wherein
she undertook to give the post-Charter Court a new role, method and ideology –
did damage to our very idea of democracy.
2 J. MacPherson, “Canadian Constitutional Law and Madame Justice Wilson –
Patriot, Visionary
and Heretic” (1992) 15 Dalhousie L.J. 217 at 220.
.. A thorough discussion of the way the Charter has been used in this fashion can be found in
Morton & Knopff, supra note 15.
