1 Friedland, Martin L., “Criminal Justice and the Charter,” Manitoba Law Journal 13 (1983), 551.Google Scholar

2 See Russell, Peter H., “The First Three Years in Charterland,” Canadian Public Administration 28 (1985), 376–96, at 394.CrossRefGoogle Scholar

3 For a detailed account, see Peter W. Hogg, “A Comparison of the Canadian Charter of Rights and Freedoms with the Canadian Bill of Rights,” in Tarnopolsky, Walter and Beaudoin, Gerald A.(eds.), Canadian Charter of Rights and Freedoms: Commentary (Toronto: Carswell, 1982), 2–24.Google Scholar

4 Orientals and Indians have been mistreated by Canadian governments. Indians in Canada have fared somewhat better than their American counterparts, but Orientals somewhat worse. Still, there has been nothing comparable in scope and harshness to the “Jim Crow” regime in the United States. See Berger, Thomas, Fragile Freedoms: Human Rights and Dissent in Canada (Toronto: Clarke, Irwin, 1981);Google Scholar and M. James Penton, “Collective versus Individual Rights: The Canadian Tradition,” in McKercher, William R. (ed.), The U.S. Bill of Rights and the Canadian Charter of Rights and Freedoms (Toronto: Ontario Economic Council, 1983), 174–83.Google Scholar

5 For an instructive discussion of this issue, see Ian Greene, “Legislative Supremacy in Post-Charter Canada,” paper presented at the annual meeting of the Canadian Law and Society Association, Winnipeg, Manitoba, June 1986.

6 See the final section of this article.

7 Morton, W. L., The Canadian Identity (Toronto: University of Toronto Press, 1961), 86.Google Scholar

8 This is the thesis of Russell, Peter, “The Effect of a Charter of Rights on the Policy-Making Role of the Canadian Courts,” Canadian Public Administration 25 (1982), 1–33.CrossRefGoogle Scholar

9 See Morton, F. L. and Pal, L. A., “The Impact of the Charter of Rights on Public Administration,” Canadian Public Administration 28 (1985), 221–43.CrossRefGoogle Scholar

10 Dickson, C. J.Hunter v. Southam Inc. [1984] 2 S.C.R. 145, 155.Google Scholar

11 LeDain, J. R. v.Therens, [1985] 1 S.C.R. 613, 18 D.L.R. (4th) 655.Google Scholar

12 Wilson, J.Singh et al. v. Minister of Employment and Immigration Board, [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 442.Google Scholar

13 Law Society of Upper Canada v. Skapinker 9 D.L.R. (4th) 161.

14 Hunter v. Southam Inc. [1984] 2S.C.R. 145,11 D.L.R. (4th) 641. The Chief Justice was quoting American constitutional scholar, Paul Freund.

15 The Queen v. Big M Drug Mart 18 D.L.R. (4th) 321.

16 Operation Dismantle v. the Queen 18 D.L.R. (4th) 481, [1985] 1 S.C.R. 441.

17 Interpretivism and noninterpretivism are the two competing concepts used in the contemporary US debate over how the courts should interpret the Constitution. Interpretivism holds that judges should only enforce the “original understanding” of constitutional language, because to do more amounts to illegitimate judicial amendment of the constitution. It is the characteristic method of contemporary American conservatives, and its practical effect is a form of judicial self-restraint. In the New Deal era, however, conservative Supreme Court judges used it to justify striking down most of the Roosevelt New Deal legislation prior to 1937. Noninterpretivism holds that judicial fidelity to the “original understanding” is either impossible (What was it?) or undesirable (resulting in archaic and unworkable decisions). Noninterpretivism argues that judges must be free to go beyond the original understanding and interpret constitutional rights in light of other factors—the spirit of the constitution, the purpose of the right, contemporary social or economic conditions, and so forth. Noninterpretivism supports considerable judicial discretion. It is associated with the liberal judicial activism of the Warren Court, but this association with a politically liberal jurisprudence is not intrinsic.

18 Reference re British Columbia Motor Vehicle Act. [1985] 2 S.C.R. 486, 24 D.L.R. (4th) 536.

19 Ibid.

20 Quebec Protestant School Bd. v. A.-G. Quebec, [1984] 2 S.C.R. 66, 10 D.L.R. (4th) 321; Hunter v. Southam Inc., [1984] 2 S.C.R. 145,11 D.L.R. (4th) 641; Singh et al. v. Minister of Employment and Immigration Board, [1985] 1 S.C.R. 177,17 D.L.R. (4th) 442. the Queen v. Big M Drug Mart Ltd., [1985] S.C.R. 295,18 D.L.R. (4th) 321. R v. Therens, [1985] 1 S.C.R. 613, 18 D.L.R. (4th) 655; Dubois v. the Queen, 23 D.L.R. (4th) 503; B.C. Motor Vehicle Reference,[1985] 2 S.C.R. 486,24 D.L.R. (4th) 536; R. v. Oakes, [1986] 1 S.C.R. 103. Clarkson v. the Queen, [1986] 1 S.C.R. 383.

21 Law Society of Upper Canada v. Skapinker, 9D.L.R. (4th) 161; Operation Dismantle Inc. v. the Queen, [1985] 1 S.C.R. 441,18 D.L.R. (4th) 481; Valente v. the Queen, 24 D.L.R. (4th) 161; R. v. Spencer, [1985] 2 S.C.R. 278, 21 D.L.R. (4th) 161.

22 Krug v. the Queen, 21 D.L.R. (4th) 161.

23 There were only five Bill of Rights cases in which an individual won the case against the government. In only one case—Drybones v. The Queen, [1970] S.C.R. 282—was a statute declared invalid. The four other cases are Brownridge v. the Queen, [1972] S.C.R. 195 (right to counsel before taking breath test); Lowry and Lepper v. the Queen, [1974] S.C.R. 195 (right to hearing before sentencing); A.-G. Ontario v. Reale [1975] 2 S.C.R. 624 (right to an interpreter during judge's charge to the jury); R. v. Shelley [1981] 2 S.C.R. 196 (reverse onus clause overbroad).

24 Of the six, four were federal and two were provincial. The federal statutes included the Lord's Day Act, the Anti-Combines Act, the Narcotics Control Act, and the Immigration Act. The provincial statutes were Quebec's Bill 101 (Charter of the French Language) and the British Columbia Motor Vehicle Act.

25 Big M Drug Mart overruled Robertson, and Rosetanni, v.the Queen, [1963] S.C.R. 651.Google ScholarTherens overruled Chromiak, [1980] 1 S.C.R. 471. Dubois overruled Brown, R. v. No. 2, [1963]Google Scholar S.C.R. vi, 3 C.C.C. 341n. Oakes overruled Appleby.

26 All statistical measurements are from Morton, F. L. and Withey, Michael J., “Charting the Charter—1982–1985: A Statistical Analysis,” Canadian Human Rights Yearbook 1986 (forthcoming).Google Scholar

27 [1985] 1 S.C.R. 613, 18 D.L.R. (4th) 655.

28 Seymour Martin Lipset, “Canada and the United States: The Cultural Dimension,” in Doran, Charles F. and Sigler, John H. (eds.), Canada and the United States (Englewood Cliffs: Prentice-Hall, 1985), 129.Google Scholar

29 John Hagen and Jeffrey Leon, “Philosophy and Sociology of Crime Control,” in Johnson, Harry M. (ed.), Social System and Legal Process (San Francisco: Jossey-Bass, 1978), 182Google Scholar (cited in Lipset, “Canada and the United States,” 129).

30 See Pye, A. Kenneth, “The Rights of Persons Accused of Crime Under the Canadian Constitution: A Comparative Perspective,” Law and Contemporary Problems 45 (1982), 221–48.CrossRefGoogle Scholar

31 Prior to the Charter, Canadian courts had explicitly rejected any “automatic” exclusionary rule in cases where police obtained evidence illegally. The leading cause is Hogan v. the Queen [1975] 2 S.C.R. 574.

32 Dubois v. the Queen, [1985] 2 S.C.R. 350, 23 D.L.R. (4th) 503.

33 R. v. Oakes, [1986] 1 S.C.R. 103.

34 The Queen v. Big M Drug Mart 18 D.L.R. (4th) 321; Edwards Books v. the Queen, unreported.

35 National Citizens' Coalition Inc. v. A.-G. Canada [1985] WWR 436.

36 See G. Pyrcz, “Pressure Groups,” in Pocklington, T. C. (ed.), Liberal Democracy in Canada and the United States (Toronto: Holt, Rinehart, and Winston, 1985), 341–74.Google Scholar

37 A. Paul Pross, “Pressure Groups: Adaptive Instruments of Political Communication,” in Pross, A. Paul (ed.), Pressure Group Behaviour in Canadian Politics (Toronto: McGraw-Hill, Ryerson, 1975), 18.Google Scholar

38 Operation Dismantle v. the Queen 18 D. L.R. (4th) 481, [1985] 1 S.C.R. 441.

39 A.-G. Quebec v. Quebec Association of Protestant School Boards 1984, 10 D.L.R. (4th) 321, [1984] 2 S.C.R. 66.

40 R. v. Morgentaler, Ontario Court of Appeal, Oct. 2, 1985, unreported.

41 For an account of the trial before the Saskatchewan Court of Queen's Bench, see Collins, Anne, The Big Evasion: Abortion—The Issue that Won't Go Away (Toronto: Lester and Orpen Dennys, 1985), 44–52, 67–71.Google Scholar For an account of the hearing before the Court of Appeal of Saskatchewan, see Morton, F. L., “Fetus's Rights the Issue as Abortion Battle Resumes,” National, vol. 13, no. 1 (January 1986), 8.Google Scholar

42 The feminist lobbying effort is described in L. A. Pal and F. L. Morton, “Bliss v. The Attorney General of Canada: From Legal Defeat to Political Victory,” Osgoode Hall Law Journal (forthcoming).

43 Atcheson, M. Elizabeth, Eberts, Mary, and Symes, Beth, Women and Legal Action: Precedents, Resources and Strategies for the Future (Ottawa: Canadian Advisory Council on the Status of Women, 1984), 163.Google Scholar

44 Charter of Rights Educational Fund, Report on the Statute Audit Project (Toronto, 1985).Google Scholar

45 Women's Legal Education and Action Fund information letter, undated but released sometime in late 1985.

46 “Ministers Announce Extension of Court Challenges Program,” Government of Canada official news release, Sept. 25, 1985, 2.

47 An “intervenor” is the functional equivalent of an amicus curiae, but is the term used in Canadian jurisprudence to describe third-party participation in appeal court proceedings. The technical difference between the two is that while amicus exists in common law, intervenor status is created by statute.

48 For a treatment of the changing institutional and procedural dimensions of the Supreme Court of Canada, see Morton, F. L., “The Politicization of the Supreme Court of Canada,” paper for the 13th World Congress of the International Political Science Association, Paris, July 1985.Google Scholar

49 See Welch, Jillian, “No Room at the Top: Interest Group Intervenors and Charter Litigation in the Supreme Court of Canada,” University of Toronto Faculty of Law Review 43 (1985), 204–31.Google Scholar

50 Ibid. Also see Swann, Kenneth P., “Intervention and Amicus Curiae Status in Charter Litigation,” paper presented at the Charter Litigation Symposium, Faculty of Law, University of Toronto, February 28, 1986.Google Scholar

51 Kenneth McNaught, “Political Trials and the Canadian Political Tradition,” in Friedland, M. L. (ed.), Courts and Trials: A Multi-Disciplinary Approach (Toronto: University of Toronto Press, 1975), 137–61.Google Scholar

52 This “nation-building” potential of the Charter is developed at length in Rainer Knopff and F. L. Morton, “Nation-Building and the Canadian Charter of Rights and Freedoms,” in Cairns, Alan and Williams, C. (eds.), Constitutionalism, Citizenship, and Society in Canada (Toronto: University of Toronto Press, 1985), 133–82.Google Scholar

53 See Russell, “Charterland,” 382.

54 Reference re Education Act of Ontario and Minority Language Education Rights (1984), 10 D.L.R. (4th) 491.

55 See Smiley, Donald V., “The Structural Problem of Canadian Federalism,” Canadian Public Administration 14 (1971), 328;CrossRefGoogle Scholar also Gibbins, Roger, Regionalism: Territorial Politics in Canada and the United States (Toronto: Butterworths, 1982).Google Scholar

56 Kwavnick, David, “Interest Group Demands and the Federal Political System: Two Canadian Case Studies,” in Pross (ed.), Pressure Group Behaviour, 70–86, at 77.Google Scholar

57 This is an abbreviated version of the argument developed in Gibbins, Roger, Knopff, Rainer, and Morton, F. L., “Canadian Federalism, the Charter of Rights, and the 1984 Election,” Publius 15 (1985), 155–69.Google Scholar

58 The Ontario Film and Video Appreciation Society and Ontario Board of Censors (1983), 147 D.L.R. (3d) 58.

59 (1983), 5 D.L.R. (4th) 766. Discussed in Russell, “Charterland,” 378–79.

60 Because the Constitution Act, 1982 was adopted without the consent of Quebec, Premier Lévesque and many other political leaders in Quebec viewed it as unconstitutional. Lévesque's argument was subsequently heard and rejected by the Supreme Court of Canada. See Romanow, Roy, Whyte, John and Leeson, Howard, Canada Notwithstanding: The Making of the Constitution 1976–1982 (Toronto: Carswell, 1984), chap. 8.Google Scholar

61 Lévesque's pre-emptive and “blanket” application of the override was especially controversial, since it shattered the expectation that section 33 would only be used retroactively and in a case-by-case fashion, in response to a judicial decision nullifying a statute. This global use of the override power has been successfully challenged by the Alliance des Professeurs de Montréal in the Quebec Court of Appeal, and is currently on appeal to the Supreme Court. It recently came to light that the new Liberal government of Premier Robert Bourassa did not insert the ritual clause in the first eight bills that it introduced in December 1985. It is not yet clear if this represents a change in policy or an oversight.

62 The Devine government claimed that it was protecting its “back to work” legislation from an earlier Charter precedent that overturned a similar law.

63 See Leeson, Howard, in the Regina Leader Post, February 4, 1986, and the Ottawa Citizen, February 8, 1986.Google Scholar

64 See Eisler, Dale, Regina Leader Post, January 23, 1986.Google Scholar

65 Early examples are discussed in Gerald Rubin, “The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law,” in Lederman, W. R. (ed.), The Courts and the Canadian Constitution (Toronto: McClelland and Stewart, 1964), 220–48Google Scholar, at 226. Much of the abuse and ensuing controversy over the constitutional reference was caused by its ambiguous relation to the federal government's disallowance power. On this see Smith, Jennifer, “The Origins of Judicial Review in Canada,” this JOURNAL 16 (1983), 115–34.Google Scholar In both instances the source of the problem is the difficulty of making a hard and lasting distinction between “policy issues” and “legal issues.” For an explanation of how this dilemma led to the demise of the disallowance power, see Robert Vipond, C., “Constitutional Politics and the Legacy of the Provincial Rights Movement in Canada,” this JOURNAL 18 (1985), 267–94. at 282–84.Google Scholar

66 The potential for abuse is heightened by the ability of a government, directly or indirectly, to refer the legislation of a second government to its own court of appeal. In the most notorious modern case—“The Chicken and Egg Reference”—the Manitoba government persuaded its own Court of Appeal to declare an Ontario Marketing policy unconstitutional. This case is analyzed by Weiler, Paul, In the Last Resort: A Critical Study of the Supreme Court of Canada (Toronto: Methuen, 1974), 156–64.Google Scholar

67 Joe Borowski came from this rural, Catholic Saskatchewan society, and later was an NDP cabinet minister in Manitoba until he resigned in protest of public funding of abortions in 1972.

68 Bill 53, also styled as the “Freedom of Informed Choice (Abortions) Act,” had two basic provisions. The first was a consent requirement for husbands of married women and the parents of minors. The second was a requirement that women desiring an abortion must first be read a description of the probable age, physical characteristics, and abilities of the unborn child; a description of the abortion procedure and its medical risks; and a list of public and private agencies available to assist the woman to carry the child to term.

69 See the Regina Leader Post, June 11 and 12, 1985.

70 Reference re The Freedom of Informed Choice (Abortions Act), (1986), 44 S.R. 104. The Court of Appeal ruled that Bill 53 trenched upon the federal government's Criminal Code jurisdiction and so was ultra vires. The Charter issue was not reached.

71 Reference re Education Act of Ontario and Minority Language Education Rights (1984), 10 D.L.R. (4th) 491.

72 See Russell, “Charterland,” 382–83.

73 The term is taken from Russell (ibid.).

74 Section 93 of the British North America Act protects the “rights and privileges” possessed by denominational schools at the time of Confederation and guarantees the same education rights to the Protestant minority in Quebec as those possessed by the Catholic minorities outside of Quebec. This mutual guarantee of publicly funded separate school systems between the French Catholics in Quebec and the English Protestants in Ontario was one of the compromises that made Confederation possible.

75 Globe and Mail, March 29, 1985.

76 Globe and Mail, April 26, 1985.

77 See Russell, Peter, “The Political Purposes of the Canadian Charter of Rights and Freedoms,” The Canadian Bar Review (March, 1983), 30–54, at 51.Google Scholar

78 Ibid.

79 A possible example of this problem is the courts' treatment of the right to counsel in the context of police “check stops” and requests for breath samples. A “maximal” interpretation to the “right to counsel” may seriously harm the public's growing interest in effectively combating impaired driving.

80 “Let justice be done, though the heavens should fall.” This is a caveat that judges should not be influenced by the practical consequences of enforcing legal rights.

81 A potential example of this problem is the legal battle over Sunday closing laws. While the old Lord's Day Act clearly had a religious purpose, contemporary “retail holiday acts” do not. This has not deterred various business-related interest groups from challenging the new Sunday-closing laws as violations of “freedom of religion.” Thus what is essentially a social and economic issue has been transformed into a Charter “freedom of religion” issue.

82 The leading example of this problem is the abortion issue as it is presented in the Borowski and Morgentaler cases. There is a strong case to be made that in a healthy liberal democracy, fundamental moral issues such as abortion should be settled through the electoral-legislative process, and not through an unaccountable and unrepresentative agency such as the courts.

83 Morton and Withey, “Charting the Charter.”

84 The two best examples of this kind of positive Charter impact are the Southam and Singh decisions. In Southam, the Supreme Court ruled that government investigators cannot issue search warrants to themselves. In Singh, the Court ruled that the immigration authorities must provide an opportunity for an appeal hearing for people facing deportation.

85 Morton, “Charting the Charter.”

86 A good example of this is the redrafting of secular Sunday closing laws in response to the striking down of The Lord's Day Act in Big M Drug Mart. The new laws typically contain exemptions for businesses owned and operated by non-Christian families who observe a different day of rest.

87 The anti-majoritarian and unaccountable character of judicial review give it a prima facie undemocratic character. See Bickel, Alexander, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill Co., 1982), chap. 1.Google Scholar

88 Because of the periodic but constant change of judicial personnel through appointments by the political executive, final appellate courts cannot “obstruct” indefinitely the policy initiatives of enduring political majorities. See Dahl, Robert A., “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law 6 (1957), 279–95.Google Scholar

89 For a very instructive elaboration of the constitutional supremacy-judicial supremacy dilemma in US politics, see Agresto, John, The Supreme Court and Constitutional Democracy (Ithaca: Cornell University Press, 1984).Google Scholar Ironically, Agresto at times seems to be looking for something like the Canadian section 33, legislative override as a solution: “To have subjected judicial ‘vetoes’ to the same process of review as that to which the Constitution subjects presidential vetoes would have been the most unobjectionable method of combining the benefit of active judicial reasoning and scrutiny with final democratic oversight” (134–35).

90 Russell, “Policy-Making,” 32.

91 This distinction was the cornerstone of Hamilton's famous defence of judicial review in Federalist No. 78.

92 See Jaffa's, Harry discussion of the problem of moral tyranny in modern politics in his Crisis of the House Divided: An Interpretation of the Lincoln-Douglas Debates (Seattle: University of Washington Press, 1959), 243–45, 271–72.Google Scholar

93 Bickel, Alexander, The Morality of Consent (New Haven: Yale University Press, 1975).Google Scholar