The Decline of Common Law Constitutionalism in Canada

BRADLEY C. S. WATSON is Philip M. McKenna
Professor of American and Western Political Thought
at Saint Vincent College. He previously practiced
law in Vancouver, Canada. His forthcoming book is
Living Constitution, Dying Faith (ISI Books).

Canada provides a case study in the
precipitous decline and fall of common
law constitutionalism in the face of modern,
and especially postmodern, political thought
and practice.¹ In 1982, the Canadian Charter
of Rights and Freedoms (or “the Charter,”
as it is commonly called) was introduced.
It provided the means whereby what
might loosely be termed an “Americanstyle”
rights-oriented jurisprudence could
play a major role in Canadian courts.

For its first 115 years as a unified nation,
Canada had followed English common law
doctrines, including, critically, the notion of
parliamentary supremacy. Unlike England,
Canada from the beginning had a federal
system that raised questions of separation of
powers between the national and provincial
governments. As in the case of U.S. states,
Canadian provinces retained sovereignty in
certain areas. In Canada, to the extent courts
held forth on constitutional matters, it was
most often on questions limited to the relationship
between the national and provincial
governments.

Under the new jurisprudence, Canadian
courts, unlike the English courts on which
were are modeled, no longer confine themselves
to a relatively limited range of disputes,
or to the careful application of existing legislation.
Rather, they act as all-purpose social
engineers, often declaring unconstitutional,
for all times and purposes, legislation duly
passed by Parliament or the provincial legislatures—
and occasionally, in effect, re-writing
that legislation. Such a jurisprudence,
prior to 1982, simply did not exist in Canada.

The Charter changed all this, but it did not
do it alone. The rights-based liberalism inherent
in the Charter was aided by the
postmodern politics of Canada. This heady
combination has had a devastating effect on
common law constitutionalism. Reflecting
on it discloses vital lessons for the United
States and other common law countries.

The Charter purports to guarantee various
fundamental freedoms, democratic rights,
mobility rights, legal rights, and equality
rights, among other things. But, in a bow to
the notion of consent expressed through parliamentary
institutions, section one of the
Charter makes all of the rights and freedoms
therein subject to “such reasonable limits
prescribed by law as can be demonstrably
justified in a free and democratic society.” In
a further bow to parliamentary supremacy,
section thirty-three of the Charter—the socalled
“notwithstanding clause”—provides
that federal or provincial acts may operate
“notwithstanding” the fundamental freedoms
or legal rights guaranteed by the Charter as
interpreted by the courts, if Parliament or a
provincial legislature expressly so declare.

In sum, the Charter can be seen as a liberal
rights framework imposed on what the Canadian
philosopher George Parkin Grant
saw as a “Tory” nation, not traditionally
comfortable with, or responsive to, the rhetoric
of liberal rights. The document contains
within it express provisions that were designed
as an escape hatch for the judicial and
popular branches of government should the
liberal claims to right, and to rule, become
too oppressive to the practice of parliamentary
government, or to a more modest and
limited sense of the proper role of a common
law court.

Armed with this information, one might
well expect the Charter’s practical impact to
be minimal. But this has not proved to be the
case. Judges interpret the meaning of section
one to suit their purposes, and the notwithstanding
clause is rarely if ever used, for fear
of contradicting the notion of judicial independence.
As a result, a new philosophy of
judicial supremacy, in aid of a late modern or
postmodern rights-based liberalism, guides
Canadian jurisprudence.

It is a philosophy under which the balancing
of interests—nominally undertaken by
Canadian courts—tends to result fairly consistently
in the triumph of individual or
group autonomy. But this is an autonomy
that is divorced from the limitations of early
modern liberalism, particularly the limitation
of political consent. In this sense, it is a
postmodern, self-expressive liberalism. As
such, it threatens the right of people to
exercise a traditional kind of liberal-democratic
prerogative—the freedom of self-government,
not to mention the realization of
rights through the slow, steady accretion of
common law wisdom, rather than the insistent
demand for immediate results, handed
down from the philosopher kings of the
courtroom.

Post-Common Law Jurisprudence

The change in Canada has been marked. At
its most straightforward, the new philosophy
was captured by a Justice of the Supreme
Court of Canada, Bertha Wilson, in her
ruling in the 1988 case of R. v. Morgentaler,
which overturned Canada’s penal statute
governing abortion. In that case, she exalted
individual autonomy and the right to unconstrained
private choice as a means to dignity
and self-worth. She agreed with the claim
that the “liberty” mentioned in section seven
of the Charter includes the full control of
one’s life and individual autonomy. Relying
on Roe v. Wade, Wilson held that “the respect
for individual decision-making in matters of
fundamental personal importance reflected
in the American jurisprudence also informs
the Canadian Charter.” Further, as to the
fundamental “choice” that is abortion, she
said “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
psyche which are at the heart of the dilemma.”
And this was conjoined with a
lamentation that “women’s needs and aspirations
are only now being translated into
protected rights.”

To appreciate the general nature of this
type of legal reasoning, one need only compare
Wilson’s words with those of the plurality
opinion of the U.S. Supreme Court, in
the 1992 case of Planned Parenthood of Southeastern
Pennsylvania v. Casey: “At the heart of
liberty is the right to define one’s own
concept of existence, of meaning, of the
universe, and of the mystery of human life.”

In the Morgentaler case, the then Chief
Justice of Canada, Brian Dickson, chose to
rely on a purported breach of the Charter
guarantee of security of the person to strike
down the impugned Canadian Criminal Code
provision restricting abortion. At stake, in
the view of the Chief Justice, was a woman’s
“bodily integrity,” which included integrity
in both a “physical and emotional” sense. As
one observer of Canadian constitutionalism
has noted, he thus concealed the court’s
policy-making role “by converting indeterminate
substantive issues into procedural
questions.”² This, of course, is a trick that has
been well-honed in American courts, beginning
in earnest in the mid twentieth century.

The Morgentaler case therefore captures in
a nutshell two phenomena critical to understanding
the contemporary Canadian judiciary.
First, it illustrates the obsessive concern
with the self that is at the heart of late modern
philosophy and which, despite its democratic
veneer, actually prevents the people from
acting in a political sense. Second, it shows
how the Charter encourages a kind of reasoning
that is legal, or legalistic, in the most
technical sense of the term, and that does not
take full account of competing moral-political
arguments.

These phenomena have already manifested
themselves in many Charter cases, and
one can safely predict that they will mutually
reinforce themselves and continue to dominate
much constitutional litigation in Canada.
There is really nothing to stand in their way,
regardless of the explicit Charter language
that was designed to reassure those who were
concerned with consensual and customary
politics.

Canadian courts are now among the most
activist in the world, promiscuously minting
new rights having to do with everything
from criminal punishment to same-sex mar
riage. Despite the fact that the Charter never
mentions either, Canadian courts have declared
capital punishment to be unconstitutional,
and same sex “marriage” to be constitutionally
guaranteed. They have not only
struck down laws on rights-based grounds, they
have rewritten existing laws on those grounds.

For example, in the 1998 case of Vriend v.
Alberta, the Court held that the human rights
code of the province Alberta, which specifically
excluded “sexual orientation” as a protected
category, must be read as if sexual
orientation were a protected category. The
facts were as follows: an individual was fired
by a Christian college on the basis that he was
a practicing homosexual. He attempted to
file a discrimination complaint with the
relevant government human rights commission,
but was told he could not do so because
the act that gave the commission its mandate
did not include sexual orientation as a protected
category. Instead, it protected individuals
from discrimination on the basis of
“race, religious beliefs, colour, gender, physical
disability, mental disability, marital status,
age, ancestry or place of origin.”

The relevant Charter provision, according
to the Court, reads as follows:

Every individual is equal before and under
the law and has the right to the equal
protection and equal benefit of the law
without discrimination and, in particular,
without discrimination based on race, national
or ethnic origin, colour, religion, sex,
age or mental or physical disability.

In interpreting this clause—in a decision
unanimous in the result—the Court brought
together a number of strains of its new
constitutional reasoning. It held that the
“underinclusiveness” of the Alberta human
rights act denied the equal benefit and protection
of the law on the basis of a personal
characteristic—sexual orientation—that is
“analagous” to those which the Charter
specifically enumerates (but does not actually
enumerate).

In Vriend, the Supreme Court of Canada
undoubtedly delivered one of the more
notable judgments yet rendered by a supreme
judicial tribunal in the common law
world. A government in Canada now need
not pass a specific law that infringes on an
alleged constitutional right in order to be
challenged in court. Indeed, it may be
challenged if it does not pass legislation that
furthers a sweepingly egalitarian human
rights agenda; and its failure may be rectified
by a judicial “reading in” of the absent
provision.

Further, the Supreme Court does not find
itself bound to interpret, even broadly, the
actual words of the Charter. Rather, where
a preferred clause is absent (such as a guarantee
of nondiscrimination against homosexuals)
it too may be “read in” if the Court
deems it to be “analogous” to any clause that
actually is written in the document. In Stalinist
Russia, people were famously air-brushed
out of official photographs; in Canada, clauses
are openly air-brushed in to legal documents.
In this continuing magic show, the role of
Merlin is played by the Supreme Court of
Canada. In a practice completely alien to
common law constitutionalism, Parliament
and the provincial legislatures have, in important
respects, been reduced to mere errand
boys for the judicial branch. Judges
have become prophets and priests of the new
Holy Writ.

In Canada, we have witnessed the effective
destruction of parliamentary supremacy
through the assertion of a stunningly broad
power of courts to strike down and read in as
they please. But this new attitude of judicial
omnipotence has also displaced an allied, if
more subtle, aspect of the traditional common
law understanding: that the primary
judicial responsibility is to decide matters of
dispute between specific parties. Not only
would courts not strike down legislation on
constitutional grounds, other branches of
government could posit, through action and
argument, their interpretation of what adherence
to the timeless (and, in the case of
England and largely of Canada—unwritten)
constitution requires, even if this interpretation
were at odds with the judicial interpretation
as expounded in a particular case. The
legislative branch could, for example, pass
another law to clarify the language of the
existing statute, or to deal differently with
similar cases in the future. Or the executive
branch, without affecting the rights of the
parties as adjudicated in the particular instance,
could act on its contrary view in other
cases and in general (as did Abraham Lincoln
in arguing and acting contrary to the principles
of the U.S. Supreme Court’s ruling in
the infamous Dred Scott decision, which held
slaves to be property). But the view that other
branches of government—and especially
Parliament—might assert themselves against
the judicial branch has been almost entirely
overridden in Canada. And this happened in
less than a single generation.

Propitiously for the advocates of the new
legalism, the Charter was introduced at a
time when postmodern thinking was extending
its reach among the intelligentsia, including
those in the legal academy. Such thinking
proved to be the perfect intellectual vehicle
for the client groups of the Charter as they
sought to build a post-common law Canada.
Postmodernism is an amalgamation of philosophical,
literary, and linguistic theories that
begin with skepticism of the power of reason
to tell us anything about the nature of the
cosmos or our obligations in it. As such, it
gives modernist, rights-based liberalism a
nihilist edge. For many postmodernists,
“knowledge” of moral-political things is
nothing more than what can be defined by
the powers that be in any given society.
“Knowledge” accumulates in proportion to
the degree of the individual’s internalization
of the norms laid down by those powers,
unless that person can somehow successfully
resist the powers that be. Recognition of the
primacy of will or self-assertion, rather than
reason or objective inquiry, comes to be the
dominant modus operandi of a legal establishment
enamored of postmodernism. Creative
activity becomes the essence of the
political: here a power discourse to be
deconstructed or imposed, there an opportunity
for self-creation, everywhere an assertion
of will. Such self-assertive claims on
behalf of allegedly marginalized individuals
or groups find their natural home in courts of
law, where the consent of fellow citizens need
not be sought, and due regard for ancient
understandings need not be exhibited in
order to achieve substantial cultural change.

Canada, as it turned out, provided a
particularly fertile ground for such power
games, and such a separation from common
law constitutionalism. One could not visit a
law school classroom in Canada in the 1980s
or 1990s without finding rooms full of 20-
somethings excited by these prospects, as
postmodern ideas and their implement—in
the form of the Charter—came to coexist.
Legal education in Canada began to reflect
the triumph of a set of interpretations of the
modern project as that project unfolded in
the formerly “British” part of North America:
that the individual, and certain preferred
groups of individuals, were paramount. Each
was, in its own unique ways, to be protected
from the overreaching and unjust intrusions
of all levels of government or society—or
even, in the case of same-sex “marriage,”
from the definitions contained within established
dictionaries. This protection would be
guaranteed by a new class within Canadian
society. It would be a class of young lawyers
trained in the intricacies and potential of the
Charter. The new class would be educated by
a group of legal academics already broadly
sympathetic to the idea of increased judicial
involvement in Canadian life. Given time,
this new class would first convince the existing
members of the judiciary of the rectitude
of a new Canada in which judges, rather
than citizens or their elected legislatures,
made final determinations on matters of
great moral-political import. And, given
even more time, this new class would itself
come to dominate the Canadian bench and
legal academy.

If one were to scour the course syllabi of
Canadian law schools over the past twenty to
twenty five years, one would search in vain
for two things: a sense that anything might
have been lost with the introduction of the
Charter, and an account of rights rooted in
anything other than the fashions of the current
generation. With respect to the former,
one Canadian observer has noted that “not
one public voice was raised in opposition to
the end of British North America.”³ Furthermore,
the “Charter has also played its
part in encouraging us to forget our own
history. Law students are unshakeably convinced
of two things about the Canada that
existed before the Charter. First, Canadians
simply had no rights until we adopted the
Charter and, second, until it got a constitutional
guarantee of rights, Canada was just
not a proper, respectable country.”⁴

One would perhaps not expect to find a
lament for loss within the corridors of the
legal academy, whose interests were furthered
by converting formerly political claims
into legalistic ones. Neither would one expect
to find much recognition that the Canada
that existed prior to 1982 was, after all, a
tolerable parliamentary democracy. In the
new dispensation, this label can, ironically,
only be worn by a nation wherein all manner
of moral and political disputes are, along
American lines, constitutionalized.

Bills of Rights and Judicial Power

And here we would do well to remind
ourselves of the great debate over the U.S.
bill of rights—and the nature of judicial
power in general—that took place during the
1787-1789 struggle for the ratification of the
U.S. Constitution. Alexander Hamilton, in
Federalist 84, warned Americans of the founding
generation of the dangers of a written
enumeration of rights. In arguing against a
bill of rights, Hamilton—to most Americans
of today—might seem a bit of a crank. But
contemporary Canada demonstrates the wisdom
of Hamilton’s political theory and prognostications.

Hamilton first claimed that a bill of rights
would, in important senses, be redundant. In
addition to the overall structure of government
created by the proposed federal Constitution—
including its republican character
along with its separation of powers doctrine
and its extended sphere—the Constitution
contains within it a number of specific provisions,
many derived directly from English
constitutional norms and practices, that in
effect guarantee the rights of citizens. Such
provisions include the guarantees of habeas
corpus and trial by jury, the prohibition on
bills of attainder and ex post facto laws, and
the precise and limited definition and punishment
of the high crime of treason.
Hamilton notes Blackstone’s claim that habeas
corpus—”The Great Writ”—is the bulwark
of the British Constitution. Common
law constitutional principles and practices,
built up over many centuries of English
experience, are far greater protections for
liberty than parchment barriers in the form
of rights declarations.

But Hamilton goes beyond this in reflecting
on the implications of a bill of rights for
the question of the civic education and
acculturation of citizens. A written enumeration
of rights is a poor exercise in civic
education insofar as it implies that rights are
privileges given by the sovereign unless specifically
reserved to the people. In other
words, such an enumeration will confuse
citizens as to the origins of their rights, which
exist in nature and the design of nature’s
God, and have been revealed and protected
in time through the slow accretion of common
law wisdom. A proper understanding of
the dignity and station of human beings,
which can never be “enumerated,” is at
issue. Such things ought not to be subject to
infinite redefinition, expansion, or contraction
at the whim of positive law, especially
national positive law. In America, the people
have not surrendered to the national government
the rights that would be enumerated,
and therefore nothing needs to be reserved.
In Hamilton’s words, “a minute detail of
particular rights is certainly far less applicable
to a Constitution like that under consideration,
which is merely intended to regulate
the general political interests of the nation,
than to a constitution which has the regulation
of every species of personal and private
concerns.”

And herein lies the danger that goes well
beyond redundancy. Bills of rights “would
contain various exceptions to powers which
are not granted; and, on this very account,
would afford a colorable pretext to claim
more than were granted. For why declare
that things shall not be done which there is no
power to do?” Such bills “furnish, to men
disposed to usurp, a plausible pretense for
claiming that power. They might urge with
a semblance of reason that the Constitution
ought not to be charged with the absurdity of
providing against the abuse of an authority
which was not given.” The proper interpretation
of citizen rights, which undoubtedly
exist and have existed for centuries within
the English tradition, always depends upon
proper “public opinion, and on the general
spirit of the people and of the government.”
It is precisely this public opinion and spirit
that are likely to be corrupted by an “injudicious
zeal for bills of rights” that at once
inflame the soul and provide ambitious men
the tools to further their ambition. The mere
“aphorisms” that tend to appear in bills of
rights are, for Hamilton, things that “would
sound much better in a treatise of ethics than
in a constitution of government.” They are,
in short, invitations to political scheming.

And nowhere is this scheming of ambitious
men more likely to be found than in the
judicial branch—whether among the judges
themselves, or the lawyers and litigants who
appear before them. The Anti-Federalists
feared the dangers of federal judicial power,
even as they demanded the inclusion of a bill
of rights in the American constitutional plan.
The eventual inclusion of the Bill of Rights
can be considered one of their great victories
and contributions to American constitutionalism,
but in winning this victory they provided
what would prove to be a useful tool for
judicial usurpation. Still, Anti-Federalist
analysis of the essential characteristics of the
judicial power that was created at least in
potential by the Constitution remains commanding.
Such power can only be understood
by setting it into relief against what it
is not: an outgrowth of common law constitutionalism.

As the New York Antifederalist “Brutus”
wrote in 1788:

the supreme court under this constitution
would be exalted above all other power in
the government, and subject to no controul…
I question whether the world ever saw, in
any period of it, a court of justice invested
with such immense powers, and yet placed
in a situation so little responsible…. The
judges in England, it is true, hold their
offices during their good behaviour, but
then their determinations are subject to
correction by the house of lords; and their
power is by no means so extensive as that of
the proposed supreme court of the
union….they in no instance assume the
authority to set aside an act of parliament
under the idea that it is inconsistent with
their constitution. They consider themselves
bound to decide according to the
existing laws of the land.

Brutus’s elucidation of the limits of judicial
power in English common-law constitutionalism
contrasts markedly with what he
sees, presciently, as the inevitability of the
U.S. Supreme Court’s deciding cases according
to its loose sense of the spirit rather
than the letter of the document:

There is no power above them, to controul
any of their decisions. There is no authority
that can remove them, and they cannot be
controuled by the laws of the legislature. In
short, they are independent of the people,
of the legislature, and of every power under
heaven. Men placed in this situation will
generally soon feel themselves independent
of heaven itself.

For the Anti-Federalists as well as the
Federalists, the political art was largely defined
by the fact that there will always be
“men disposed to usurp.” In one of the many
ironies of history, the Anti-Federalists feared
the dangers of unchecked judicial power,
but not the bill of rights, while Hamilton and
other Federalists downplayed the dangers of
the federal judiciary while emphasizing the
dangers of a bill of rights. As it has turned out,
both sides were half right.

It took a great deal of time for U.S. courts
to feel themselves independent of every power
under heaven—essentially from the Founding
to the middle part of the twentieth
century. It took Canadian courts only a few
years, once they were given the green light
of the Charter, to upend the great tradition
of common law constitutionalism. The difference
is accounted for by the fact that the
modern language of rights had to become
more virulent, to the point of merging with
the nihilism of postmodern assertion. The
Charter added the practical tools to an already
impressive array of intellectual tools in
the kit of those usurpers of all parties who
made war on the earlier constitutional wisdom.
By itself, neither the Charter nor
postmodern thinking could have so thoroughly
and rapidly transformed Canada—a
“Tory” nation steeped in a common law
constitutionalism that existed within the
memory of so many living Canadians. These
Canadians, having borne witness to the destruction
of their organic constitution, such
that it was, can offer with George Grant a
lament that is “not based on philosophy but
on tradition. If one cannot be sure about the
answers to the most important questions,
then tradition is the best basis for the practical
life. Those who loved the older traditions
of Canada may be allowed to lament what
has been lost, even though they do not know
whether or not that loss will lead to some
greater political good.”⁵

NOTES

1. Portions of the argument here presented have been
   adapted from the author’s previous writings, including
   “The Language of Rights and the Crisis of the Liberal
   Imagination,” in Anthony A. Peacock, ed., Rethinking the
   Constitution: Essays on Canadian Constitutional Reform,
   Interpretation, and Theory (Oxford University Press, 1996)
   and Civil Rights and the Paradox of Liberal Democracy
   (Lanham, MD: Lexington Books, 1999).
2. Christopher
   P. Manfredi, Judicial Power and the Charter (Toronto:
   McClelland & Stewart, 1993), 118.
3. Robert Martin, “A
   Lament for British North America,” in Peacock, Rethinking
   the Constitution, 11.
4. Ibid.
5. George Grant,
   Lament for a Nation: The Defeat of Canadian Nationalism
   (Ottawa: Carleton University Press, 1989), 96.