Canada's constitutional revolution: From legislative to constitutional state

Israel Law Review

Volumn 33, Issue 1, 1999, Pages 13-50

  Weinrib, Lorraine Eisenstat ^a  

^a UNIVERSITY OF TORONTO   (Canada)

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EID: 84988414503     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700015880     Document Type: Article

References (95)

1. United Mizrahi Bank Ltd., et al. v. Migdal Cooperative Village, et al. (1995) 49 P.D. 221 (para. 47) (English translation).
2. Basic Law: Freedom of Occupation (S.H. 1994, No. 1454, p. 90)
3. Basic Law: Human Dignity and Liberty (S.H. 1992, No. 1391, p. 150).
4. “At the beginning, individual rights were applied only within the framework of law. In our time laws are only applied within the framework of individual rights”. Erica-Irene A. Daes, “Restrictions and Limitations on Human Rights”, (1971) 79 III René Cassin Amicorum Discipulorumque Liber at 84.
5. Like Israel, Canada engaged an old constituent power to entrench the Charter, the vestigial authority of the British Parliament to amend Canada's constituent instrument, the British North America Act, 1867.
6. See Re Resolution to Amend the Constitution [1981] 1 S.C.R. 753 (the Patriation Reference)
7. Re Objection by Quebec to Resolution to Amend the Constitution [1982] 2 S.C.R. 793 (the Quebec Veto Reference).
8. Lorraine E. Weinrib, “Trudeau and the Canadian Charter of Rights and Freedoms: A Question of Constitutional Maturation”, in Andrew Cohen and J.L. Granatstein, eds., Trudeau's Shadow (Random House, 1998). The Charter remains popular. In the early 1990's public opinion supported the Charter more than other national institutions such as the national Parliament, the Royal Canadian Mounted Police, bilingualism, multiculturalism and the monarchy. In a study released in April 1999, Professor Joseph Fletcher of the University of Toronto found that 82% of Canadians favoured the Charter as “a good thing”. By a 2:1 measure, they approved the authority of courts to review and invalidate legislation. The Supreme Court of Canada garnered a 76% approval rating. The polling was conducted, by chance, just after two exceptionally controversial court rulings, one a lower court decision invalidating the criminal prohibition against possession of child pornography, now under appeal, and the other a Supreme Court of Canada ruling stipulating that there is no implied consent to sexual assault.
9. Jeffrey Simpson, “The Fondness of Canadians for their Charter”, Globe & Mail, April 22, 1999, A15.
10. Torbjorn Vallinder, “The Judicialization of Politics — A World-Wide Phenomenon: Introduction”, 15 Int'l Pol. Sci. R. 91
11. Martin Shapiro and Alec Stone, “The New Constitutional Politics of Europe”, (1994) 26 Comp. Political Studies 397
12. C. Neal Tate and Torbjorn Valinder, eds., The Global Expansion of Judicial Power (New York, New York University Press, 1995).
13. For a full treatment of the incident described in this section, including a consideration of all the Canadian constitutional cases involving claims by the Jewish community, see Lorraine E. Weinrib, “‘Do Justice to Us’: Jews and the Constitution of Canada”, in M. Brown, ed., Not Written in Stone: Jews, Constitutions and Constitutionalism in Canada (forthcoming).
14. Select Committee on Bill No. 12, Respecting the Lord's Day — Minutes of Evidence, April 27, 1906, p. 187.
15. Respecting the Lord's Day — Minutes of Evidence.
16. Ontario Law Reform Commission, Report on Sunday Observance Legislation, 1970, at 43–44, citing 74 H.C. Deb. (Can.) at cols. 1010–1011; 1014. Mr. Fitzpatrick made these comments in moving second reading, on April 5,1906. The idea expressed here was that Jews (despite the fact that they held Canadian citizenship) were foreigners because of their membership in the Jewish nation. Such membership meant that they reserved their ultimate loyalty to a future Jewish state and were thus incapable of the allegiance held by British subjects to their King.
17. The Constitution Act, 1867, sec. 93.
18. This is the name, since 1982, of the British North America Act, 1867, U.K., 30 and 31 Victoria, c. 3. These rights, held against the province of residence, were to be enforced by appeal to the federal executive, not by judicial review.
19. R. v. Big M Drug Mart Ltd. [1985] 1 S.C.R. 295 at 336, per Dickson J. In this case, the Court overturned its restrictive interpretation of freedom of religion in the Sunday observance context under the statutory Canadian Bill of Rights.
20. See Robertson and Rosetanni v. The Queen [1963] S.C.R. 651. Here also, at 344, the Court established the “purposive” mode of rights interpretation, looking at the interests that the guarantee was meant to protect. Reference is to be made to the character of the Charter, its larger objects, its language, the historical origins of the concepts, and its connection to other Charter rights and freedoms. This interpretation is to be generous, not legalistic, as well as faithful to the appropriate linguistic, philosophic and historical contexts.
21. Big M has been cited on this basis by the South African Constitutional Court (State v. Makwanyane, CCT/3/94, at para. 19, per Chaskalson P.)
22. and in Bank Mizrachi, CCT/3/94, at para. 86, per Barak P.
23. Big M Drug Mart, CCT/3/94, at 338.
24. R. v. Keegstra [1990] 3 S.C.R. 697
25. [1991] 2 W.W.R. 1.
26. See also Lorraine E. Weinrib, “Hate Promotion in a Free and Democratic Society: R. v. Keegstra”, (1991) 36 McGill L.J. 1416–1449
27. reprinted in S.J. Heyman, ed., Hate Speech and the Constitution (New York, Garland Publishing, 1996).
28. In R. v. Zundel [1992] 2 S.C.R. 731
29. See Smith v. Collin 439 U.S. 916
30. R.A.V. v. City of St. Paul 505 U.S. 377 (1992)
31. Wisconsin v. Mitchell 508 U.S. 476 (1993).
32. More generally, see Laura Lederer and Richard Delgado, eds., The Price We Pay: The Case Against Racist Speech, Hate Propaganda, and Pornography (New York, Hill and Wang, 1995)
33. Mayo Moran, “Talking About Hate Speech: A Rhetorical Analysis of American and Canadian Approaches to the Regulation of Hate Speech”, (1994) Wise. L.R. 1425.
34. Dominique McGoldrick and Therese O'Donnell, “Hate Speech Law Consistency with National and International Human Rights Law”, (1998) 18 Legal Studies 453.
35. Brief of Canadian Jewish Congress, prepared by Lyle S.R. Kanee, submitted to the Supreme Court of Canada in Vriend v. Alberta [1998] 1 S.C.R. 493,156 D.L.R. (4th) 385, at para. 7. Here the C.J.C. took the position that the Charter required a provincial legislature to prohibit same-sex discrimination in private dealings. It invoked the idea that all discrimination, whether based on religion or sexual orientation, is inimical to the Charter. On file with the author.
36. Reference Re Bill 30, an Act to Amend the Education Act (Ontario), [1987] 1 S.C.R. 1148, 40 D.L.R. (4th) 18
37. Adler v. Ontario [1996] 3 S.C.R. 609.
38. See, for example, Bora Laskin, “An Inquiry into the Diefenbaker Bill of Rights” (1959) 37 Can. Bar. R. 77
39. Randall Balcome, et al., eds., Supreme Court of Canada Decision-Making: The Benchmarks of Rand, Kerwin and Martland (Toronto, Carswell, 1990)
40. George Williams, “Civil Liberties and the Constitution — A Question of Interpretation” (1994) 5 Public L.R. 82
41. Itzhak Zamir and Allen Zysblat, eds., Public Law in Israel (Oxford, Oxford U.P., 1996)
42. Pnina Lahav, Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century (Berkeley, U. Calif. Press, 1997)
43. Lorraine E. Weinrib, “Sustaining Constitutional Values: The Schreiner Legacy”, (1998) 14 S.A. Journal on Human Rights 351.
44. For an introduction to the Charter's case law and commentary, see, Macklem, Risk, Rogerson, Swinton, Weinrib and Whyte, eds., Canadian Constitutional Law (Toronto, Emond Montgomery, 2nd ed., 1997). Supreme Court of Canada judgments can be accessed at http://www.droit.umontreal.ca/doc/csc-scc/en/index.html.
45. On occasion judges had forwarded what we now understand as rights-norms in the interstices of federalism analysis, building what was termed an “unwritten bill of rights”. Eventually it expressly abandoned that mode of analysis. The Supreme Court had also failed to give effect to a federal, statutory Bill of Rights, a document that was unclear as to the nature of its guarantees and institutional roles. The inability of the political or the legal system to “get it right” paved the way for the Charter. See Canadian Constitutional Law, chapters 16 (“The Common Law Constitution”), 17 (“Rights and Federalism”), 18 (“The Canadian Bill of Rights) and 19 (”The Advent of the Charter”).
46. For the drafting history, see Lorraine E. Weinrib, “Constituting Constitutional Change in Canada: of diligence and dice”, (1992) 42 U. Toronto L.J. 207.
47. Lorraine E. Weinrib, “Canada's Rights Revolution: Paradigm Lost”, in David Schneiderman, ed., Putting Rights in Their Place: Comparing Constitutional Rights in Canada and United States (forthcoming).
48. Here the Canadian Courts followed Sunday Times v. United Kingdom (1979) 2 EHRR 271.
49. See also, Oscar M. Garibaldi, “General Limitations on Human Rights: the Principle of Legality”, (1976) 17 Harv. Int'l L.J. 503.
50. R. v. Oakes [1986], 1 S.C.R. 103, 26 D.L.R. (4th) 200. This is the Supreme Court of Canada's classic statement of its approach to the guarantee and limitation clause. The Court described the values appropriate to limitation in this way, at S.C.R. 136: “The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified”.
51. See also, Lorraine Weinrib, “The Supreme Court of Canada and Section 1 of the Charter”, (1988) 10 Supreme Court L.R. 469.
52. The Canadian override clause may be applied to suppress the fundamental freedoms (religion, expression, association), the legal rights and the equality rights. It does not extend to democratic or mobility rights or to the minority language education rights. These latter rights were considered appropriate to judicial finality because they were similar to the subject matter of judicial review before the Charter. The presence of the override clause in section 8 of Basic Law: Freedom of Occupation but not in Basic Law: Human Dignity and Liberty produces a similar pattern. See Metreal v. The Knesset of Israel H.C. 4676/94, at para. 18–21.
53. Charter sec. 33. See also, Lorraine E. Weinrib, “Learning to Live With the Override”, (1990) 36 McGill L.J. 541–571.
54. The Canadian Constitution has been interpreted, without much textual direction, to secure the determination of questions relating to legal rights to courts of law, beyond the reach of administrative tribunals that do not exercise judicial functions. See Macklem, Risk, Rogerson, Swinton, Weinrib and Whyte, eds., Canadian Constitutional Law (Toronto, Emond Montgomery, 2nd ed., 1997) chap. 14, “The Judicial Function”.
55. See also, Manitoba Provincial Judges Association v. Manitoba (Minister of Justice), (1998), 155 D.L.R. (4th) 1.
56. [1986] 1 S.C.R. 103,26 D.L.R. (4th) 200.
57. See also Lorraine E. Weinrib, “The Supreme Court of Canada and Section One of the Charter”, (1988) 10 Supreme Court L.R. 469.
58. For a recent full articulation of the limitation tests in the Supreme Court of Canada, see Thomson Newspapers Co. v. Canada (Attorney General), (1998), 159 D.L.R. 4th 385
59. Reference re Secession of Quebec (1998), 161 D.L.R. 4th 385.
60. Peter W. Hogg and Allison A. Bushel], “The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't Such a Bad Thing After All)”, (1997) 35 Osgoode Hall L.J. 75.
61. See Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, 54 D.L.R. (4th) 577.
62. Lorraine E. Weinrib, “Learning to Live With the Override”, (1990) 36 McGill L.J. 541–571.
63. In addition to Big M Drug Mart, Keegstra, Thomson Newspapers and the Quebec Secession Reference referred to earlier, see R. v. Morgentaler, [1998] 1 S.C.R. 30
64. Vriend v. Alberta, [1998] 1 S.C.R. 493
65. Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624
66. Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569
67. Edwards Books and Art Limited v. The Queen, [1986] 2 S.C.R. 713
68. Egan v. Canada, [1995] 2 S.C.R. 513
69. R. v. Butler [1992] 1 S.C.R. 452
70. Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519
71. For an overview of the Charter critics see Richard Sigurdson, “Left- and Right-Wing Charterphobia in Canada: A Critique of the Critics”, (1993) 7–8 Int'l J. Can. Studies 95.
72. Examples of this critique include Andrew Petter and Alan Hutchinson, “Private Rights/Public Wrongs: The Liberal Lie of the Charter” (1988) 38 U. Toronto L.J. 278
73. Alan Hutchinson, Waiting for Coraf (Toronto, University of Toronto Press, 1995)
74. Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (Thompson Educational Publishers, 2nd ed., 1994); Joel Bakan, Just Words, (Toronto, University of Toronto Press, 1997).
75. R. v. Morgentaler [1988] 1 S.C.R. 30
76. R. v. Downey, [1992] 2 S.C.R. 10
77. Rocket v. Royal College of Dental Surgeons of Ontario [1990] 2 S.C.R. 232
78. Peterborough (City) v. Ramsden [1993] 2 S.C.R. 1084
79. R. v. Keegstra [1996] 1 S.C.R. 458
80. Ross v. New Brunswick School District No. 15 [1996] 1 S.C.R. 825
81. R. v. Butler [1992] 1 S.C.R. 452
82. Thomson Newspapers Co. v. Canada (Attorney General) [1988] 1 S.C.R. 877 (release of polling data on eve of election)
83. Libman v. Attorney General of Quebec [1997] 3 S.C.R.
84. Law v. Minister of Human Resources Development (1999) 170 D.L.R. (4th) 1, released March 25,1999 (discrimination based on age in pension scheme)
85. Eldridge v. British Columbia (Attorney General) [1997] 3 S.C.R. 624
86. Vriend v. Alberta [1988] 1 S.C.R. 493
87. A.G. Ontario v. M. and H., judgment of S.C.C. released May 20, 1999 (same sex couples excluded from judicial determination of spousal support obligations).
88. Don Stuart, Charter Justice in Canadian Criminal Law (Scarborough, Ontario, Carwell, 2nd ed., 1996)
89. David Stratas, The Charter of Rights in Litigation (Aurora, Ontario, Canada Law Book, 1997).
90. For the right-wing critique of the Charter, see the Rainer Knopff and F.L. Morton, eds., Charter Politics (Scarborough, Ontario, Nelson Canada, 1992)
91. “Permanence and Change in a Written Constitution: The ‘Living Tree’ Doctrine and the Charter of Rights, (1990) 1 Supreme Court L.R. 533
92. F.L. Morton, “The Charter Revolution and the Court Party”, (1992) 30 Osgoode Hall L.J. 627
93. Troy Q. Riddell and F.L. Morton, “Reasonable Limitations, Distinct Society and the Canada Clause: Interpretive Clauses and the Competition for Constitutional Advantage”, (1998) 31 Can. Journal Pol. Sci. 467
94. Rainer Knopff, “Populism and the Politics of Rights: The Dual Attack on Representative Democracy” (1998) 31 Can. Journal Pol. Sci. 683.
95. Etienne Mureinik, “A Bridge to Where? Introducing the Interim Bill of Rights”, (1994) 10 S.A. Journal on Human Rights 31.