A Judicial Vision of Canada at 150 and Beyond

For most of us today, the Supreme Court of Canada is the arbiter of the most complex questions of law, and the definitive authority for morality in our democracy.

It wasn’t always that way. In 1867, Canada was still largely an extension of the British Empire, and the Judicial Committee of the Privy Council in London (England, not Ontario), was still maintained for appeals until 1949. The King–Byng Affair and Balfour Declaration let to an amendment of the Supreme Court Act in 1949, and the final case being appealed to it in 1959.

It’s influence quickly accelerated. In 1968, Peter H. Russell stated in the Osgoode Hall Law Journal,

There is a good deal of talk these days about the Supreme Court of Canada. This is a change. After a rather stormy beginning in 1875, public interest in the Court waned. The court did come into the limelight briefly in 1949 when appeals to the Privy Council were abolished and the Court became supreme in fact as well as name. But for the most part public interest then focussed on the symbolic significance of this development for the achievement of national autonomy rather than on the functions and performance of the Court itself.

Adam Dodek has charted the Court’s importance in the years that follow in a new article in Foreign Policy, The Supreme Court at Canada’s 150th,

Through most of the 20th century, the court was content also to remain in the shadow of Parliament and the executive. Until the enactment of the Canadian Charter of Rights and Freedoms in 1982, the Supreme Court functioned as a reliable defender of state power.

The year 1982 marked an important turning point for the Supreme Court with the enactment of the Charter of Rights. In the preceding years, the court had become more independent.

[emphasis added]

The turning point, in many ways, was the decision in Reference re Supreme Court Act, ss. 5 and 6,

In 2014, the Supreme Court “constitutionalized” itself in the reference regarding the appointment of Justice Marc Nadon to the high court. The court invalidated Prime Minister Harper’s appointment of Nadon as well as the Harper government’s attempt to amend the Supreme Court Act. It held that both required a constitutional amendment. That decision was soon followed up by a rejection of the Harper government’s plans for Senate reform.

The prime minister himself reacted by publicly lashing out at the Chief Justice in May 2014 in what Harper biographer John Ibbitson described as “the nadir” of the Harper premiership. Public support was largely on the side of the chief justice and of the court. The incident showed the court’s independence and its ability to weather a direct and intense political attack.

That does not mean that the Court should only side with public support against the political executive. In 2010, the Court wrote in Canada (Prime Minister) v. Khadr,

[24] We conclude that Canadian conduct in connection with Mr. Khadr’s case did not conform to the principles of fundamental justice…

[25] This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.

These statements were the basis of the federal government’s recent settlement of $10.5 million, a decision that may appear to be politically unpopular.

Yet the Charter, and the role that the Court plays in our democracy, does not come cheaply. As the Court stated in R. v. Big M Drug Mart Ltd.,

  1.  What may appear good and true to [the majority] or to the state acting at their behest, may not… be imposed upon citizens who take a contrary view. The Charter safeguards [minorities] from the threat of “the tyranny of the majority”.

Ultimately the Court in Khadr offered a declaratory remedy to properly respect the prerogative powers of the executive, but noted that the executive is not exempt from constitutional scrutiny, even when exercising its common law powers under royal prerogative. The appropriate sanction, and any discontent with the settlement provided, was through the democratic process, towards the political entities involved.

Yet some people commemorate Canada 150 in recognition of the enormous challenges some populations have faced here, with Canada 150+ or Resistance 150, in recognition that there were many peoples here before Canada, and that for a great number of them, their experiences under our rule of law has not been overwhelmingly positive.

The proper balance between development and consultation, for example, continues to be explored. On November 30, 2016, the Prime Minister stated,

Canadians know that strong action on the environment is good for the economy. It makes us more competitive, by fostering innovation and reducing pollution. Canadians value clean air and water, beautiful coasts and wilderness, and refuse to accept that they must be compromised in order to create growth…

We said that major pipelines could only get built if we had a price on carbon, and strong environmental protections in place. We said that Indigenous peoples must be respected, and be a part of the process. We also said that we would only approve projects that could be built and run safely.

The Court similarly struggles with this balance. This week two decisions, Clyde River (Hamlet) v. Petroleum Geo‑Services Inc. and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., provided seeming opposite conclusions on respectively rejecting seismic testing near traditional Inuit territory in Baffin Bay and at the same time approving the National Energy Board’s plan for the Line 9 pipeline.

In Chippewas, the Court summarized both cases as follows,

[2] These cases demonstrate that the duty to consult has meaningful content, but that it is limited in scope. The duty to consult is rooted in the need to avoid the impairment of asserted or recognized rights that flows from the implementation of the specific project at issue; it is not about resolving broader claims that transcend the scope of the proposed project. That said, the duty to consult requires an informed and meaningful opportunity for dialogue with Indigenous groups whose rights may be impacted.

In Clyde River the Court stated, “the Crown always holds ultimate responsibility for ensuring consultation is adequate,” and “any decision affecting Aboriginal or treaty rights made on the basis of inadequate consultation will not be in compliance with the duty to consult, which is a constitutional imperative.” This duty is not only a legal one, but it facilitates the ongoing relationships between Indigenous peoples and not non-Indigenous peoples in Canada.

The limits of this duty was further expanded upon on Chippewas,

[41] The duty to consult is not triggered by historical impacts. It is not the vehicle to address historical grievances…

Understanding the broader context in which Indigenous rights emerge is not “to attempt the redress of past wrongs,” but rather an attempt to recognize the realities of our history, and the consequences that result from it. Not only is the Crown is required to consult on adverse impacts, but the constitutional dimension of this duty can even surpasses broader economic concerns. This does not serve as a veto over Crown decisions, but rather illustrates the complex balancing of societal interests that must occur.

After 150 years, Canada has yet to fully come to terms in our legal system and societal fabric with the institutional trauma it caused to Indigenous peoples. Healing this trauma may cost many more millions to come, hopefully not in litigation or settlements, but in initiatives used to strengthen Indigenous communities. Doing so, however, may not necessarily be economically fruitful in the short-term or politically popular. In this way, the Court still plays a very crucial role in continuing to ensure the earliest minorities are respected from the past, present and future tyrannies of our majority.

At Canada 150 the Charter, and the Supreme Court of Canada that enforces it, is as much of our democratic institutions belonging to us, if not even more so, than Parliament or the executive. Its autonomy, and insulation from the winds of popular change, may actually provide greater stability and greater effect to individual rights than the right to an individual vote.

In 1867, the vision of Canada could hardly be said to be a judicial one. In 2017, it’s difficult to envision a rule of law without it.

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