Part Two:  Judges Reign Supreme?

Apr 22, 2022 | Freedom Forum

Read Part One, “The Charter at 40” here.

The first time that I began to question the utility of the Charter was during law school. I remember studying a course called Civil Liberties, taught by Professor Ian Hunter at Western University in London, Ontario. Professor Hunter challenged his students to consider whether a Charter of Rights was necessary given the freedoms we had in pre-Charter Canada. He referred to the “Jehovah’s Witnesses (JW) cases” during the 1950s and 1960s, when the Duplessis government of Québec discriminated against the JWs because of their religious teachings. With each JW case, the Supreme Court of Canada ruled in favour of protecting their civil liberties. Of note were the judgements of Justice Ivan Rand, who would later serve as Western’s first Law Dean. Hunter asked, “Why is it necessary to have a Charter when the courts were quite capable of deciding in favour of liberty in accordance with the British tradition of individual freedom?” He posed the question: “Are we losing our freedom when legislatures are no longer considered the supreme law of the land?”[1]

Of course, it is more nuanced than that. Remember, prior to the Charter, Canada’s legal inheritance included the body of judge-made law, known as the “common law,” along with the English Bill of Rights and the Magna Carta; these limited the powers of the monarchy and recognized the role of parliament in making law. How all that worked in practical terms was still determined by the judiciary. Therefore, an argument can be made that even before 1982, Canada’s legal system was characterized by “judge-made law”. However, the contrast lies in the very different frame of thought that was at work then compared to what we see now. The pre-Charter era took seriously the principles of the past. Today, the courts seem to think that ten or twenty years is a long time; there is little acknowledgement of the long-standing principles of British legal history.

Now at forty years, we need to revisit the debates over the Charter’s role and relevance. Is the Charter necessary? Should we be ruled by judges or parliamentarians? Having practiced law for nearly thirty years, I can appreciate the concerns of those who wrestled with the Charter when it was first implemented, and the objections of critics such as Professor Hunter. Here, then, are my thoughts.

Evolving Morals and Judicial Activism

Has the administration of justice advanced since the Charter? 

We now know what it is to live in a country where judges issue public policy from the bench. Indeed, current Chief Justice Richard Wagner of the SCC has stated that when it comes to interpreting the Constitution, the court does not “necessarily keep to the strict definition of a word when it was drafted 150 years ago. We look at it against the backdrop of an evolving society with the perspectives, outlooks, moral values of that society, and the context in which the issue comes up at the time the Court is making its decision.”[2] When asked by a journalist if he thought the SCC was “the most aggressive in the world” in terms of “nation-changing decisions,” he responded: “I would say so; and I must say I’m very proud of that.”[3]

I suggest that Chief Justice Wagner’s description of his role as being responsive to society fits better with a legislature than a court. Until the advent of the Charter, it was the legislature that debated and discussed public policy issues as they related to the changing values of society. Now courts have taken it upon themselves to dictate from the bench what they think the law “ought” to be in the day’s context. In other words, they may seek to fashion society after their own understanding of where Canadians stand – or should stand – on various issues. According to Chief Justice Wagner, “There are moral values that link the majority of Canadians,” which justify changing interpretations of the law.

It must be a difficult project for the Court to determine Canadian moral values at any given time! To avoid making subjective decisions, judges would need to find objective facts on the moral beliefs of Canadians. They would need access to such tools as public opinion surveys, focus group meetings in the various regions of the country, or perhaps a board of inquiry. But are such “tools” within the domain of a court? Certainly not under our current system of justice. In fact, it is inconceivable that our courts would ever use any of these methods in determining the evolution of “moral values”.

Is it not the case, therefore, that the Court is taking upon itself the role of the legislature in determining what the law should be vis a vis the “moral values” of Canadians?

What does this mean in practical terms? Let’s take a look at several legal cases that illustrate the changing attitude of the courts when it comes to actively re-interpreting the Constitution in light of new “moral values”.

Medical Assistance in Dying

In speaking to the press, Chief Justice Wagner referenced the 2015 Carter case[4] on assisted suicide. He admitted that the 1993 Rodriguez case[5] essentially dealt with the same facts related to the same provision of the Criminal Code. Yet the Rodriguez case upheld the criminality of assisted suicide while the Carter case reached the opposite decision. This alone shows the courts’ willingness to abandon precedent in order to accommodate the apparent evolution of society and medicine. However, what is even more troubling is the fact that the courts now seem to expect full compliance with the new “outlook.” 

Within this framework, medical assistance in dying (MAiD) is not simply seen as legally permissible, but as morally good. Physicians are, therefore, required to lay aside any personal moral or religious scruples. Indeed, the Ontario Court of Appeal ruled that the Carter decision means any physician who is unable to follow the new moral order will “have to seek out other ways in which to use their skills, training and commitment to patient care.”[6] In other words, if you cannot embrace the current medical ethic as determined by the court, you must find another profession, regardless of your years of training and service and your commitment to the Hippocratic oath to do no harm: “primum non nocere.” At least for the Ontario Court of Appeal, the dissonance between a conscientious physician and the morality of Canadians (as understood by the judges) is solved by the removal of the physician from the practice of medicine. Rather harsh, it would seem.

Trinity Western University

There are many examples of this type of evolving Canadian morality as discerned by judges. Consider the case of the Trinity Western University law school litigation.[7] TWU sought to accredit a law school, but several law societies refused to recognize the school, not because of the quality of education, but because of TWU’s “Community Covenant” that defined marriage as heterosexual and monogamous. 

In 2001, the Supreme Court heard a similar case involving TWU. [8] Then, it was the BC College of Teachers that refused to accredit an education degree because of TWU’s admissions requirement. The 2001 Court ruled that “TWU is not for everybody; it is designed to address the needs of people who share a number of religious convictions.”[9] 

However, in 2018 the same Court ruled that TWU’s admission requirement was “degrading and disrespectful”[10] even though TWU had religious freedom protection under s.2(a) of the Charter; it was a private Christian university and not subject to BC human rights legislation; it had won the 2001 case; and it did not receive government money. All of that did not matter. The Court’s interpretation of the Charter now involved a new concept known as “Charter values.” Although the concept is undefined and not in the Charter, it nevertheless formed the basis of denying TWU relief. 

Charter Values

“Charter values” is a novel legal concept in Charter jurisprudence. As the TWU law school case demonstrates, this judicial creation can, ironically, be used to remove a Charter right even while claiming to support Charter rights. That incoherence is reason enough to jettison the concept! Yet the majority of the Court doubled down in the TWU decision, insisting that “Charter values” are “Far from controversial,” but “are accepted principles of constitutional interpretation.”[11] 

Nevertheless, the concept of “Charter values” is entirely nebulous. Charter rights are explicitly listed in the Charter; Charter values are undefined and unwritten. They can be invoked to justify decisions that are grounded in popular opinion rather than legal principles. Critics of the concept abound. Even among the Court there is considerable controversy, despite claims to the contrary![12] 

Conclusion

The Court’s ability to understand the evolving “moral values” of the Canadian majority is as much a mystery as “Charter values”. There is no clarity on the difference between “Charter values” and the “moral values” of Canadians. Perhaps there is none. We do not know But judges seem to have the confidence that they know when they need to decide. “Charter values” is a creeping, evolving concept that has limited value in assisting the law to be just. It is indeed a product of the “idiosyncrasies of the judicial mind” (see Côté and Brown JJ) that is used as a reasoning tool to justify a judge’s decision.

The problem of the new era of judge made-law under the Charter is that we have no idea what will happen when we appear before a panel of judges. There is little stability or predictability if undefined “values” can be applied to change the law itself. And unlike the legislatures, there is no back-and-forth debate when it comes to judge-made law. Judges are deemed the experts and all Canadians are expected to comply.

What does this mean for Canada? There is much more to discuss in our next installment of the Charter at 40!


[1] I followed Professor Hunter’s writings when he left teaching. He maintained his stance against the role of the court in its Charter jurisprudence. As he observed, “the Supreme Court of Canada often [took] an activist stance. But that tends to happen when the case before them corresponds to the Court’s ideological agenda (“Who Owns the Church?” Virtue Online, online: https://virtueonline.org/who-owns-church-ian-hunter.)

[2] “Richard Wagner Holds First News Conference as Canada’s Chief Justice,” Headline Politics, cpac.ca, June 22, 2018. Online: <http://www.cpac.ca/en/programs/headline-politics/episodes/62857192>.

[3] Ibid.

[4] Carter v. Canada (Attorney General), 2015 SCC 5 (CanLII), [2015] 1 SCR 331, https://canlii.ca/t/gg5z4

[5] Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 SCR 519, <https://canlii.ca/t/1frz0>

[6] Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393 (CanLII), https://canlii.ca/t/j08wq, at para. 186.

[7] Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 (CanLII), [2018] 2 SCR 293, https://canlii.ca/t/hsjpr (LSBC v TWU); Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33 (CanLII), [2018] 2 SCR 453, https://canlii.ca/t/hsjpt.

[8] Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31 (CanLII), [2001] 1 SCR 772, https://canlii.ca/t/dmd (TWU v BCCT)

[9] TWU v BCCT, at para. 25.

[10] LSBC v TWU, at para. 101: “Being required by someone else’s religious beliefs to behave contrary to one’s sexual identity is degrading and disrespectful. Being required to do so offends the public perception that freedom of religion includes freedom from religion.”

[11] LSBC v TWU, at para. 41.

[12] In the TWU law school case, critics of “Charter values” on the court included former Chief Justice McLachlin, para 115; Justice Rowe, paras 166–175; dissent of Justices Côté and Brown, paras 307–311.

Recent Podcasts

“Traitor! You’re Not Welcome Here”

“Traitor! You’re Not Welcome Here”

Barry W. Bussey “Traitor!  You’re Not Welcome Here!” Those were the words (along with other insults) that confronted NDP Leader Jagmeet Singh when he was visiting an NDP candidate headquarters in Peterborough, Ontario.  Ontario will have its provincial...