Academic journal article University of Queensland Law Journal

Romance, Realism, and the Legitimacy of Implied Rights

Academic journal article University of Queensland Law Journal

Romance, Realism, and the Legitimacy of Implied Rights

Article excerpt

Passage of the Canadian Charter of Rights and Freedoms in 1982 empowered Canadian judges not only to determine whether legislation infringed constitutionally protected rights, but also to declare legislation to be of no force or effect--to 'strike it down'--if they concluded that the infringement was not justified. This was a massive transfer of power from the elected branch of government to the judiciary and heady stuff for Canadian jurists.

Prior to the Charter Canadian judges had no formal constitutional role in the protection of rights. The Canadian Bill of Rights, a statutory bill of rights that includes most of the rights enumerated in the Charter, had been in place since 1960, but it came to little despite its requirement that federal legislation should be rights-consistent. (1) Indeed, the Canadian Bill of Rights is widely assumed to have failed because of judicial indifference to it, and the Chief Justice of the Supreme Court of Canada, Brian Dickson, was keen to ensure that this did not happen to the Charter. Dickson equated the success of the Charter with an activist role for the courts, (2) and under his leadership the Court promoted and encouraged Charter litigation from the outset, easing standing rules and welcoming interventions by interested parties, among other things. Lawyers took their cue and a spate of Charter challenges to legislation was the result. The Court embraced its new lawmaking role under the Charter, making clear that the Charter was a break from the past and that its provisions would be interpreted generously and progressively. (3)

The impact of judicial review under the Charter is impossible to deny. Numerous laws have been struck down (4) and many others have been altered substantially. Judicial review under the Charter has led to everything from the elimination of criminal law governing abortion; (5) the establishment of same-sex marriage; (6) and the legalization of medical marijuana (7) to increased restrictions on police powers and investigative authority; (8) the prohibition of extradition to face a possible death penalty; (9) the extension of legal rights to refugee claimants; (10) the right of prison inmates to vote; (11) and so on. Dramatic change of this sort excites academics and I sense that many Australian constitutional law scholars look on with envy: Canadian constitutional law seems so much more interesting and full of possibilities.

The point is not made often in Canada, but the Charter has significantly 'Americanised' Canadian constitutional law. It is not that Canadian constitutional law resembles American law in terms of the substantive outcomes reached; on the contrary, the Supreme Court of Canada has reached decisions that the US Supreme Court would reject out of hand. The point is that in Canada, as in the united States, (12) most of the major political issues in Canada eventually end up in Court one way or another, and judges in both countries have the power to strike down legislation if they consider that it unjustifiably infringes constitutionally protected rights--rights that are vaguely worded to say the least.

It is important to emphasise just how radical this power is in the Westminster constitutional tradition. Although countries such as New Zealand and the UK have also adopted statutory bills of rights, they did so in a manner that was more in keeping with traditional constitutional roles. Both the New Zealand Bill of Rights Act 1990 and the UK Human Rights Act 1998 deny judges the power to invalidate legislation. The extent to which this position reflects constitutional orthodoxy can be seen in Australia as well: neither the ACT Human Rights Act 2004 nor Victoria's Charter of Human Rights and Responsibilities Act 2006 empowers judges to invalidate legislation, and even the strongest proponents of a federal bill of rights no longer advocate a supreme-law bill of rights. It is simply a non-starter.

It is not difficult, then, to see why the first implied rights cases caused so much controversy and excitement in Australian academic circles in 1992. …

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