The Decline of Common Law Constitutionalism in Canada
Watson, Bradley C. S., Modern Age
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 parlimentary supremacy, section thirty-three of the Charter--the so-called "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. …