romance, realism, and the legitimacy of implied rights · * faculty of law, the university of...

ROMANCE, REALISM, AND THE LEGITIMACY OF IMPLIED RIGHTS

GRANT HUSCROFT*

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

* Faculty of Law, the University of Western Ontario. Thanks to James Allan, Nicholas

Aroney, Mark Carter, Jeffrey Goldsworthy, Paul Rishworth, and Grégoire Webber, who commented on earlier drafts, and to Brandon Duewel, who provided research assistance.

1 Section 2 of the Canadian Bill of Rights provides as follows: ‘Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared …’. R v Drybones [1970] S.C.R. 282, is the only case in which federal legislation was declared inoperative as a result of the Canadian Bill of Rights (legislation prohibiting Canadian Indians from being intoxicated outside of an Indian reserve).

2 See Robert J Sharpe and Kent Roach, Brian Dickson: A Judge’s Journey (2003) 309-10. 3 Justice Dickson (as he then was) set the tone for the Charter era in Hunter et al. v Southam

Inc. [1984] 2 S.C.R. 145 at 155 when he stated: ‘The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind’. See Grant Huscroft, ‘A Constitutional “Work in Progress?” The Charter and the Limits of Progressive Interpretation’ in Grant Huscroft and Ian Brodie (eds.), Constitutionalism in the Charter Era (2004) 413.

36 University of Queensland Law Journal 2011

laws have been struck down4 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 marijuana7 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

4 Peter Hogg has noted that in the first twenty years of the Charter, 83 federal and provincial

laws were struck down. He describes the outcome as follows: ‘Canada is a tolerant, sophisticated, liberal society with a flourishing democracy. For so many of its laws to be found in conflict with the Charter guarantees can only be explained by activism on the part of the Supreme Court of Canada’. See Peter W. Hogg, ‘Canada: From Privy Council to Supreme Court,’ in Jeffrey Goldsworthy (ed), Interpreting Constitutions: A Comparative Study (2006) 88.

5 R v Morgentaler [1988] 1 S.C.R. 30. Subsequent to the decision in Morgentaler, Government-sponsored legislation regulating abortion passed the House of Commons but was defeated in the Canadian Senate.

6 Halpern v Canada (2003) 225 D.L.R. (4th) 529 (Ontario Court of Appeal). Parliament passed legislation extending the decision in Halpern to apply nationally, following the receipt of the advice of the Supreme Court of Canada that such legislation was constitutional. The Court’s decision in Reference re: Same-Sex Marriage [2004] 3 S.C.R. 698, and in particular the Government’s decision to seek an advisory opinion from the Court, is discussed in Grant Huscroft, ‘Political Litigation and the Role of the Court’ (2006) 34 S.C.L.R. 35 [Huscroft, ‘Political Litigation’].

7 A line of cases beginning with R v Parker (2000) 188 D.L.R. (4th) 385 (Ontario Court of Appeal), culminating in requirements that the government grow the marijuana in some cases.

8 See, eg, R v Duarte [1990] 1 S.C.R. 30; R v Mann [2004] 3 S.C.R. 59. 9 United States of America v Burns [2001] 1 S.C.R. 283. 10 Singh v Minister of Employment and Immigration [1985] 1 S.C.R. 177. 11 Sauvé v Canada (Attorney General) [2002] 3 S.C.R. 519. 12 As Alexis De Tocqueville observed famously, ‘There is hardly a political question in the

United States which does not sooner or later turn into a judicial one’.

Vol 30(1) Romance, Realism, and the Legitimacy of Implied Rights 37

controversy and excitement in Australian academic circles in 1992. Here was a way for the Court to get into the rights business – to assert the existence of constitutional rights and a role for itself in defining and protecting them – without a bill of rights. How much easier to insist that rights may be implied by the Australian Constitution than to convince Australians to amend the Constitution to include a bill of rights!

Twenty years on, however, forceful critiques from James Allan, Nicholas Aroney, Jeffrey Goldsworthy, and other scholars have taken their toll. The implied rights idea appears to have been contained, and radical changes in the law are less likely today than once seemed possible.13 The deliberate decision of the framers of the Australian Constitution not to include a bill of rights was always a strong argument against implied rights, and the recent failure of the proposal to adopt a federal statutory bill of rights might be thought to put paid to the idea rights can be implied by the Australian Constitution.14

Proponents of implied rights are unlikely to acknowledge defeat, however, for their conception of constitutional law is romantic at its core. They are pessimistic about the elected branch of government and its motivations; they fear unrestrained majoritarianism. At the same time, they are romantic about the judiciary; they suppose that it is the only branch of government likely to protect vulnerable minorities and to preserve the integrity of the constitutional order, and if implied rights are necessary in order to allow the judiciary to accomplish these important goals, then so be it.

Constitutional romantics assume the worst of elected legislators and the best of judges, invariably downplaying the problems inherent in constitutional judicial review if not ignoring them altogether.15 It is, of course, legitimate to establish constitutional protection for rights; the people are free to entrench a bill of rights in their constitution should they choose to do so. If they choose not to, however, the notion that rights may be implied by the constitution they adopted seems to me illegitimate – no matter how desirable a particular implication may appear in a given context – for it is no part of the judiciary’s role to change the constitution it is charged with upholding. There is, of course, an argument to be had with theorists such as T.R.S. Allan,16 David Dyzenhaus,17 and Mark Walters,18 among others, but that is not an argument I want to have here. In my contribution to this issue I want to discuss the Canadian experience with the idea of implied rights – both pre and post-Charter – and to consider what lessons, if any, it holds for Australia.

I A BRIEF HISTORY OF IMPLIED RIGHTS IN CANADA

There are not many implied rights cases in Canada, but the few cases in which the

concept is discussed are well known, beginning with Chief Justice Duff’s decision in the

13 On account of the implied rights idea at least. There is, of course, more than one way in

which a judiciary bent on constitutional reform can proceed. See Jeffrey Goldsworthy, ‘The Limits of Judicial Fidelity to Law: The Coxford Lecture’ (2011) 24 Canadian Journal of Law and Jurisprudence 305.

14 The failure of the bill of rights campaign is discussed in James Allan, ‘You Don’t Always Get What You Pay For – No Bill of Rights for Australia’ (2010) 24 New Zealand Universities Law Review 179.

15 Jeremy Waldron’s work in this area is seminal. See Waldron, ‘The Core of the Case Against Judicial Review,’ (2006) 115 Yale Law Journal 1346.

16 See, eg, T.R.S. Allan, ‘Constitutional Justice and the Concept of Law’ in Grant Huscroft (ed.), Expounding the Constitution: Essays in Constitutional Theory (2008) 219.

17 David Dyzenhaus, ‘The Unwritten Constitution and the Rule of Law’ in Grant Huscroft and Ian Brodie (eds.), Constitutionalism in the Charter Era (2004).

18 Mark D Walters, ‘Written Constitutions and Unwritten Constitutionalism’, in Grant Huscroft (ed.), Expounding the Constitution: Essays in Constitutional Theory (2008) 245.


Alberta Statutes Reference. Duff argued that the preamble to the British North America Act 1867 (which established in Canada a constitution similar in principle to that of the United Kingdom) and the various provisions of the Act that contemplated representative democratically elected legislatures required the protection of public debate and discussion:

There can be no controversy that such institutions derive their efficacy from the free public discussion of affairs, from criticism and answer and counter-criticism, from attack upon policy and administration and defence and counter-attack; from the freest and fullest analysis and examination from every point of view of political proposals. This is signally true in respect of the discharge by Ministers of the Crown of their responsibility to Parliament, by members of Parliament of their duty to the electors, and by the electors themselves of their responsibilities in the election of their representatives.

The right of public discussion is, of course, subject to legal restrictions … Even within its legal limits, it is liable to abuse and grave abuse, and such abuse is constantly exemplified before our eyes; but it is axiomatic that the practice of this right of free public discussion of public affairs, notwithstanding its incidental mischiefs, is the breath of life for parliamentary institutions.

Any attempt to abrogate this right of public debate or to suppress the traditional forms of the exercise of the right (in public meeting and through the press) would, in our opinion, be incompetent to the legislatures of the provinces, or to the legislature of any one of the provinces, as repugnant to the provisions of The British North America Act ...19

Chief Justice Duff’s remarks were cited with approval by several justices of the

Supreme Court in two subsequent cases, but all of the Canadian ‘implied rights’ cases were, in fact, decided on federalism grounds.20 That is, the Court held that the impugned legislation was unconstitutional not because it infringed implied constitutional rights but because it was ultra vires provincial lawmaking authority.21 The stirring implied rights rhetoric for which the cases are celebrated is mere obiter dicta; a majority of the Supreme Court of Canada never endorsed the dicta, and in modern times the implied rights idea was repudiated. In Dupond v City of Montreal, a case decided just prior to the adoption of the Charter, a majority of the Court declared: ‘None of the freedoms referred to

19 Reference Re Alberta Statutes – The Bank Taxation Act; The Credit of Alberta Regulation

Act; and the Accurate News and Information Act [1938] S.C.R. 100, 132-3. Note that Chief Justice Duff’s argument addressed only limitations on the lawmaking authority of the provinces, but the logic of his argument extended to the federal Parliament as well.

20 Reference Re Alberta Statutes, ibid (legislation requiring newspapers to publish reply by government in response to criticism of government policy ultra vires the province); Saumur v City of Québec [1953] 2 S.C.R. 299 (municipal bylaw prohibiting distribution of written material without permission of Chief of Police ultra vires); and Switzman v Elbing and A.G. of Quebec [1957] S.C.R. 285 (legislation prohibiting use of property to propagate communism or bolshevism and prohibiting publication and distribution of material propagating communism or bolshevism ultra vires the province).

21 In Switzman, ibid, Justice Abbott went further, stating that neither Parliament nor a provincial legislature could abrogate the right of discussion and debate.


[freedoms of speech, of assembly and association, of the press and of religion] is so enshrined in the Constitution as to be above the reach of competent legislation’.22

This was not to be the Court’s last word on the subject, however. Ironically, the implied rights idea enjoyed a resurgence following the adoption of the Charter. In O.P.S.E.U. v Ontario, Justice Beetz – whose opinion in Dupond categorically denied the existence of implied rights – now categorically asserted the opposite in a concurring opinion to which a majority of the Court signed on:

There is no doubt in my mind that the basic structure of our Constitution, as established by the Constitution Act, 1867, contemplates the existence of certain political institutions, including freely elected legislative bodies at the federal and provincial levels. In the words of Duff CJ in Reference re Alberta Statutes … ‘such institutions derive their efficacy from the free public discussion of affairs …’ and, in those of Abbott J in Switzman v Elbling … neither a provincial legislature nor Parliament itself can ‘abrogate this right of discussion and debate’. Speaking more generally, I hold that neither Parliament nor the provincial legislatures may enact legislation the effect of which would be to substantially interfere with the operation of this basic constitutional structure.23

Justice Beetz went on to acknowledge that the Charter was the guarantor of rights and

that it conferred broader protection than was required by what he described as the ‘structural demands’ of the Canadian Constitution, but he insisted that ‘legislative bodies in this country must conform to these basic structural imperatives and can in no way override them’.24 This was a clear repudiation of his earlier repudiation of the idea of implied rights,25 even though, as he acknowledged, implied rights were largely redundant in light of the Charter in any event.26

22 Dupond v City of Montreal [1978] 2 S.C.R. 770. Interestingly, as Nicholas Aroney pointed

out in his comments to me, this case is ignored in the High Court of Australia’s implied rights case law. This may be a demonstration of the ‘cherry-picking’ problem commonly associated with the use of comparative constitutional law authority. See James Allan, Grant Huscroft, and Nessa Lynch, ‘The Citation of Overseas Authority in Rights Litigation in New Zealand: How Much Bark? How Much Bite?’ (2007) 11 Otago Law Review 433, and James Allan and Grant Huscroft, ‘Constitutional Rights Coming Home to Roost? Rights Internationalism in American Courts’ (2006) 43 San Diego Law Review 1 (both noting the absence of rules governing the use of foreign judicial authority and the problems to which this gives rise).

23 Ontario (Attorney General) v OPSEU [1987] 2 S.C.R. 2, [151] (emphasis added and internal citations omitted). Justice Beetz went on to say: ‘On the whole, though, I am inclined to the view that the impugned legislation is in essence concerned with the constitution of the province and with regulating the provincial public service and affects federal and provincial elections only in an incidental way’.

24 Ibid, [152]. 25 Albeit that Justice Beetz ignored Dupond in his decision. 26 OPSEU was the decision of a shorthanded Court and the implied rights issue was not the

subject of full argument. The Court refused to hear argument on Charter issues (on the basis that the activities in question occurred prior to passage of the Charter and had not been argued as Charter matters in the courts below). Chief Justice Dickson described the submissions on implied rights as ‘a hastily constructed argument relying upon certain statements in Fraser v Public Service Staff Relations Board [1985] 2 S.C.R. 455’. These statements, cited by Justice Beetz J, are as follows: ‘“freedom of speech” is a deep-rooted value in our democratic system of government. It is a principle of our common law constitution inherited from the United Kingdom by virtue of the preamble to the Constitution Act, 1867’. Justice Beetz fortified this with a reference to RWDSU v Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, 584 per McIntyre J: ‘Prior to the adoption of the Charter, freedom of speech and expression had been recognized as an essential feature of Canadian parliamentary democracy. Indeed, this Court may be said to have given it constitutional status’.


In subsequent cases the Court has embraced the concept of ‘unwritten’ or ‘underlying’ constitutional principles, but these cases have not involved the assertion of individual rights. The two most significant cases are the notorious Remuneration Reference27 and the celebrated Quebec Secession Reference.28

In the Remuneration Reference, the Court held that the Canadian Constitution includes an unwritten principle of judicial independence. That conclusion seems uncontroversial, but the case is notorious both because of its shoddy reasoning and the result it ordained:29 the Court held that the independence of the judiciary requires the establishment of independent commissions to make ‘recommendations’ on judicial salaries and benefits that governments would have to accept (unless they could justify a refusal to do so), thus treating the independence of the judiciary as an employment benefit for judges rather than a safeguard for citizens.30 For present purposes, however, the case is important because a majority of the Court endorsed the dicta from the pre-Charter implied rights cases:

[G]iven the importance of political expression to national political life, combined with the intention to create one country, members of the Court have taken the position that the limitation of that expression is solely a matter for Parliament, not the provincial legislatures …

The logic of this argument, however, compels a much more dramatic conclusion. Denying jurisdiction over political speech to the provincial legislatures does not limit Parliament’s ability to do what the provinces cannot. However, given the interdependence between national political institutions and free speech, members of the Court have suggested that Parliament itself is incompetent to ‘abrogate this right of discussion and debate’: Switzman … per Abbott J; also see Rand J …; Saumur, … per Kellock J; OPSEU v Ontario (Attorney General) … per Beetz J. In this way, the preamble’s recognition of the democratic nature of Parliamentary governance has been used by some members of the Court to fashion an implied bill of rights, in the absence of any express indication to this effect in the constitutional text. This has been done, in my opinion, out of a recognition that political institutions are fundamental to the ‘basic structure of our Constitution’ (OPSEU) and for that reason governments cannot undermine the mechanisms of political accountability which give those institutions definition, direction and legitimacy.31

In contrast to the Remuneration Reference, the Secession Reference is often hailed

as an example of wise judicial statecraft. The Secession Reference was the federal

27 Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and

Impartiality of Judges of the Prov. Court of P.E.I. [1997] 3 S.C.R. 3 [Remuneration Reference].

28 Reference re Secession of Quebec [1998] 2 S.C.R. 217 [Secession Reference]. 29 Criticism of the case is voluminous. See, eg, Jeffrey Goldsworthy, ‘The Preamble, Judicial

Independence and Judicial Integrity’ (2000) 11 Constitutional Forum 60; Jamie Cameron, ‘The Written Word and the Constitution’s “Vital Unstated Assumptions”’ in P Theibault, B Pelletier and L Perret (eds.), Essays in Honour of Gérald-A Beaudoin (2002) 89; and Jean Leclair, ‘Canada’s Unfathomable Unwritten Constitutional Principles’ (2002) 27 Queen’s Law Journal 389. Peter Hogg has described the Remuneration Reference as ‘proof that unwritten constitutional principles are a bad idea’. See Peter W. Hogg, ‘The Bad Idea of Unwritten Constitutional Principles: Protecting Judicial Salaries’ in Sossin and Dodek (eds.), Judicial Independence in Context (2010) 36.

30 Although the case was decided on the basis of s 11(d) of the Charter, as Peter Hogg notes (ibid), the Court held subsequently that provincial legislation was unconstitutional on the basis of the unwritten principle of judicial independence, as well as s 11(d) of the Charter, in Mackin v New Brunswick [2002] 1 S.C.R. 405.

31 Remuneration Reference, above n 27, [102-3] (internal citations omitted)


government’s attempt to enlist the Court in the fight against Quebec separatism. In essence, the government asked the Court to confirm what was already known: Quebec does not have the legal right to secede from Canada unilaterally, either under the Canadian Constitution or as a matter of international law. The Court’s answers to the questions posed in the reference were, therefore, predictable, but as often occurs in the context of reference cases the Court went on to say a good deal more.32 In particular, the Court inferred from underlying constitutional principles a requirement that the parties to the Canadian Constitution – which says nothing of secession – negotiate separation in the event that a ‘clear majority’ of a province’s citizens voted in favour of secession based on a ‘clear question’.33

The language of the case was forceful and appeared to imbue underlying constitutional principles with primacy, even as the Court reiterated that there were ‘compelling reasons to insist upon the primacy of our written constitution’:

Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (have ‘full legal force’…) which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments.34

These remarks caused considerable excitement, but subsequent cases have not lived

up to the hype. In particular, the Secession Reference has not resulted in legislation being invalidated on the basis of underlying constitutional principles.35 Nevertheless, the idea continues to be championed, most prominently by the Chief Justice of the Supreme Court of Canada, Beverley McLachlin.

32 Canadian legislation authorizes the federal government to refer questions to the Supreme

Court of Canada for advisory opinions, which are in practice treated as binding rather than advisory (provincial governments have a similar power to refer questions to their courts of appeal, whose decisions can be appealed to the Supreme Court of Canada). Elsewhere I have made the point that the Court is self-defining of the role it plays on reference questions, in some cases answering more or less than what the government asked it to in accordance with its perceptions as to what the circumstances require. Put another way, the Court decides whether, and to what extent, it will advise the government, even though it is the government’s right to initiate the reference procedure under the Supreme Court Act R.S.C., 1985, c. S-26 s 53.See Huscroft, above n 6, 42-47 (discussing the Court’s refusal to answer the ultimate question posed in the Marriage Reference).

33 The decision gave rise to the passage of the Clarity Act, S.C. 2000 c. 26, which essentially implements the Court’s decision. See the discussion in Peter W. Hogg, Constitutional Law of Canada (2010) ch 5.7(a).

34 Secession Reference, above n 28, [54]. 35 The leading decisions of the Supreme Court of Canada, British Columbia v Imperial

Tobacco Canada Ltd [2005] 2 S.C.R. 473 and British Columbia (Attorney General) v Christie [2007] 1 S.C.R. 873, are discussed in the text below. Vincent Kazmierski, a proponent of underlying constitutional principles, concedes that they have not come to much in lower courts: ‘Generally speaking, appellate and lower court judges have also reacted cautiously to the Supreme Court’s renewed interest in unwritten principles. Thus, while Canadian courts have been willing to apply unwritten constitutional principles to aid in the interpretation of legislation or constitutional provisions, or to guide the regulation of administrative discretion, they have typically refused to apply unwritten constitutional principles to invalidate legislation’. See Kazmierski, ‘Draconian but not Despotic: The “Unwritten” Limits of Parliamentary Sovereignty in Canada’ (2010) 41 Ottawa Law Review 245 at 248-9 (internal footnotes omitted), and the cases he cites at notes 6, 7 and 8.


II CHIEF JUSTICE MCLACHLIN AND UNWRITTEN CONSTITUTIONAL PRINCIPLES Chief Justice McLachlin’s advocacy of what she has called ‘unwritten

constitutional principles’36 is linked most prominently to a 2005 speech she delivered in New Zealand in honour of Lord Robin Cooke.37

Lord Cooke is well known for his advocacy of common law constitutional rights in a series of cases he wrote while a member of the New Zealand Court of Appeal in the 1980s, (then New Zealand’s highest court). Although he began rather modestly,38 within a short time Cooke asserted the ultimate authority of the courts over Parliament. In Taylor v New Zealand Poultry Board, Cooke conceded that Parliament could, with clear language, compel a person to answer the questions of a public official on pain of penalties. He went on, however, to make the following claim:

I do not think that literal compulsion, by torture for instance, would be within the lawful powers of Parliament. Some common law rights presumably lie so deep that even Parliament could not override them.39

Of course, the legislation Cooke was interpreting had nothing to do with torture or

anything remotely like it; it established mere financial penalties. Still, in asserting the eminence of rights in the common law – rights that Parliament could not override – torture was the obvious example to make the point. No civilized society could or would legislate torture, and as a result Cooke’s claim might well have seemed inconsequential. He was stating, in essence, that should the unthinkable happen – should Parliament lose its head – the common law constitution and the courts would be there as a fail-safe. Why should anyone have any concerns about that?

Why indeed. Well, for one thing – and it is a big thing – the power that Cooke asserted would only be inconsequential if its use remained hypothetical. If there were any reason to suppose that the power would not remain in the realm of the hypothetical – that acceptance of the legitimacy of the common law constitution would render its invocation more likely, then all bets would be off. Consider, too, the gratuitous insult to Parliament implicit in the assertion that judicial power to deny the authority of duly enacted legislation is required in order to stave off the unthinkable. This is a strategy calculated to diminish the moral authority of Parliament while enhancing that of the Court: the elected branch, vulnerable to the felt passions of the time and prone to arbitrary and irrational action, must be constrained by the calmer, cooler heads of the judiciary. It is one thing for

36 Although the terms are used interchangeably in Canada (eg, unwritten vs underlying

principles), proponents tend to prefer the term ‘underlying principles’ See, eg, David Mullan, ‘Underlying Constitutional Principles: The Legacy of Justice Rand’, (2010) 34 Manitoba Law Journal 73, [28], asserting that the term ‘unwritten principles’ gives critics of the concept ‘an immediate and unjustified advantage’ [Mullan, ‘Underlying Constitutional Principles’].

37 McLachlin, ‘Unwritten Constitutional Principles: What is Going On?’ (2006) 4 New Zealand Journal of Public and International Law 147 [McLachlin, ‘Unwritten Constitutional Principles’]. References in the text will be to the speech in the form found on the SCC website.

38 The cases are discussed and critiqued in Kirby, ‘Lord Cooke and Fundamental Rights’ in Paul Rishworth (ed.), The Struggle for Simplicity in the Law: Essays for Lord Cooke of Thorndon (1997) 331, 334-9.

39 [1984] 1 N.Z.L.R 394, 398 (emphasis added).


advocates of the adoption of a written bill of rights to make this sort of rhetorical claim,40 but quite another for judges to imply it in asserting constitutional authority that the people have not chosen to confer upon them.

But Chief Justice Beverley McLachlin followed Cooke’s lead. On her account,

[J]udges have the duty to insist that the legislative and executive branches of government conform to certain established and fundamental norms, even in times of trouble … the debate is not about whether judges should ever use unwritten constitutional norms to invalidate laws, but rather about what norms may justify such action.41

In short, she proclaimed, ‘I am with Lord Cooke on this issue’.42 Chief Justice McLachlin’s Cooke Lecture is the fullest exposition of her views, and

although it provoked minor political controversy in Canada43 there was little academic criticism. Perhaps the most remarkable aspect of her lecture, however, is how little it appears to reflect the state of Canadian law. Only weeks prior to delivering the speech, Chief Justice McLachlin joined a unanimous decision of the Supreme Court of Canada that appears to rule out the notion that unwritten constitutional principles can be invoked to challenge legislation in Canada.

III IMPERIAL TOBACCO British Columbia v Imperial Tobacco Canada Ltd44 concerned several challenges to

provincial legislation that was, to say the least, unusual. I set out the salient features of the Act below at some length, using the Court’s description:

[The legislation] creates a cause of action by which the government of British Columbia may recover from a tobacco manufacturer money spent treating disease in British Columbians, where such disease was caused by exposure to a tobacco product (whether entirely in British Columbia or not) … The cause of action created … besides being ‘direct and distinct’, is not a subrogated claim … [and] can be pursued on an aggregate basis — i.e., in respect of a population of persons for whom the government has made or can reasonably be expected to make expenditures …

40 This is no parody of the position. No less than US Supreme Court Justice William Brennan

made precisely this claim in promoting the adoption of a bill of rights, describing the judiciary as ‘the calmer, cooler party to a dialogue from which the community benefits over time’. See Brennan, ‘Why Have a Bill of Rights?’ (1989) Oxford Journal of Legal Studies 425, 433 (1989).

41 McLachlin, ‘Unwritten Constitutional Rights’, above n 37, 4. 42 Ibid. 43 See Janice Tibbett, ‘McLachlin urges judges to go beyond letter of law’, National Post

(Ontario) December 5, 2005. In another story, one Member of Parliament was quoted as stating: ‘I don’t think it is the role of the judge, whether left or right or conservative or whatever stripe [he] happens to be, to actually figure to play the position of God’. (‘Saskatoon MP’s comments draw swift reply from Supreme Court judge’, CBC news, May 8, 2006, available at <http://www.cbc.ca/news/canada/saskatchewan/story/2006/05/08/vellacott-mclachlin060507. html>). This led to an extraordinary exchange in which the Court’s Executive Officer categorically denied that Chief Justice McLachlin had said what the MP claimed she had said, adding ‘She has always said it is a judge’s role to interpret and apply the law … but those choices are always made in accordance with legal precedents and with the laws laid down by parliament and the legislatures’.

44 [2005] 2 S.C.R. 473 (Imperial Tobacco).


Where the government’s claim is made on an aggregate basis, it may use statistical, epidemiological and sociological evidence to prove its case… It need not identify, prove the cause of disease or prove the expenditures made in respect of any individual member of the population on which it bases its claim … [T]he government enjoys a reversed burden of proof in respect of certain elements of an aggregate claim. [I]t falls on a defendant manufacturer to show that its breach of duty did not give rise to exposure, or that exposure resulting from its breach of duty did not give rise to the disease in respect of which the government claims for its expenditures. … Where the aforementioned presumptions apply, the court must determine the portion of the government’s expenditures after the date of the manufacturer’s breach that resulted from exposure to cigarettes … The manufacturer is liable for such expenditures in proportion to its share of the market for cigarettes in British Columbia, calculated over the period of time between its first breach of duty and trial … In an action by the government, a manufacturer will be jointly and severally liable for expenditures arising from a joint breach of duty (i.e., for expenditures caused by disease, which disease was caused by exposure, which exposure was caused by a joint breach of duty to which the manufacturer was a party) …

[A]ll provisions of the Act operate retroactively.45

In short, the legislation was designed to create a cause of action for the government

of British Columbia to sue tobacco companies and, in all likelihood, to win.46 Nothing in the Charter was available to help the tobacco companies and as a result they turned to underlying constitutional principles in an attempt to invalidate the legislation.

Imperial Tobacco argued that the legislation violated the principle of judicial independence because the rules it established compromised the court’s adjudicative function, and violated the principle of the rule of law because it was not prospective, not general in character, conferred special privileges on the government, and did not ensure a fair civil trial. This was no ‘hail Mary’ argument – no argument of last resort. On the contrary, in light of the decisions in the Remuneration Reference and the Secession Reference there was reason to suppose that these arguments might find favour.

But the Court would have none of it. In a unanimous decision the Court acknowledged that judicial independence is a foundational principle of the Canadian Constitution, relying among other things on the Remuneration Reference, but gave short shrift to the argument that the principle could be invoked to challenge legislation:

[T]he judiciary’s role is not, as the appellants seem to submit, to apply only the law of which it approves. Nor is it to decide cases with a view simply to what the judiciary (rather than the law) deems fair or pertinent. Nor is it to second-guess the law reform undertaken by legislators, whether that reform consists of a new cause of action or

45 Ibid, [7]-[14]. 46 The tobacco companies sought, unsuccessfully, to establish third party liability against the

federal government. The claims were struck out in R v Imperial Tobacco Canada Ltd. (2011) S.C.C. 42.


procedural rules to govern it. Within the boundaries of the Constitution, legislatures can set the law as they see fit.47

As for the rule of law, the Court acknowledged the normative force of underlying

principles in regard to executive and judicial action, but all but precluded the possibility that the rule of law principle might be invoked to invalidate legislation in future cases:

[I]t is difficult to conceive of how the rule of law could be used as a basis for invalidating legislation such as the Act based on its content. That is because none of the principles that the rule of law embraces speak directly to the terms of legislation.48

The Court rejected as falling at the ‘extreme end of the spectrum’ the rule of law

criteria proffered by Imperial Tobacco, criteria that would be included in a relatively modest conception of the rule of law (requirements that legislation be prospective, general in character, not confer special privileges on the government, and ensure a fair civil trial).49 The Court was categorical: ‘A brief review of this Court’s jurisprudence will reveal that none of these requirements enjoy constitutional protection in Canada’.50

The decision in Imperial Tobacco reflects a more realistic than romantic conception of the Constitution and the role of the Court, one that emphasises the democratic character of the Canadian Constitution and the preeminence of its written aspects:

[T]he appellants’ conception of the unwritten constitutional principle of the rule of law would render many of our written constitutional rights redundant and, in doing so, undermine the delimitation of those rights chosen by our constitutional framers. Several constitutional principles other than the rule of law that have been recognised by this Court — most notably democracy and constitutionalism — very strongly favour upholding the validity of legislation that conforms to the express terms of the Constitution (and to the requirements, such as judicial independence, that flow by necessary implication from those terms). [I]n a constitutional democracy such as ours, protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box. The rule of law is not an invitation to trivialise or supplant the Constitution’s written terms. Nor is it a tool by which to avoid legislative initiatives of which one is not in favour. On the contrary, it requires that courts give effect to the Constitution’s text, and apply, by whatever its terms, legislation that conforms to that text.51

This is forceful language, and makes clear that the legislation need conform only to

the express terms of the Constitution – in other words, constitutional text. The only apparent compromise is the acknowledgment that some constitutional requirements, such as judicial independence, may arise by necessary implication from the Constitution’s express terms. These remarks accommodate the Court’s decision in the Remuneration

47 Imperial Tobacco, above n 44, [52]. The Court reinforced this point with a statement from

Chief Justice McLachlin in Babcock v Canada (Attorney General) [2002] 3 S.C.R. 3, [57]: ‘It is well within the power of the legislature to enact laws, even laws which some would consider draconian, as long as it does not fundamentally alter or interfere with the relationship between the courts and the other branches of government’.

48 Ibid, [59]. 49 See Mark Carter, ‘The Rule of Law, Legal Rights in the Charter, and the Supreme Court’s

New Positivism’ (2008) 33 Queen’s Law Journal 453, 463-5 (Carter, ‘The Rule of Law’). 50 Ibid, [64]. 51 Ibid, [65]-[67].


Reference, but in doing so link the legitimacy of constitutional implications to the text of the Constitution, as opposed to the principles thought to underlie the Constitution, and as a result limit the scope for such such implications considerably.

Now, consider the following statements from Chief Justice McLachlin’s Cooke Lecture:

[T]here exist fundamental norms of justice so basic that they form part of the legal structure of governance and must be upheld by the courts, whether or not they find expression in constitutional text. … [T]he legitimacy of the modern democratic state arguably depends on its adhesion to fundamental norms that transcend the law and executive action. This applies to all of the branches of state governance – Parliament the executive and the judiciary. … I believe that judges have the duty to insist that the legislative and executive branches of government conform to certain established and fundamental norms, even in times of trouble. … The real debate, it seems to me, is not about whether judges should ever be able to rely on basic norms to trump bad laws or state action. At least in some circumstances they must be able to do this. If a state were to pass a genocidal law, for example, I think it would clearly be the duty of the judges to deny the law’s validity on the ground that it offended the basic norm that states must not exterminate their people. If we agree on this – and I suspect most of us would – then the debate is not about whether judges should ever use unwritten constitutional norms to invalidate laws, but rather about what norms may justify such action. [W]hile it is useful to articulate fundamental constitutional norms insofar as we can, the fact that a principle or its application does not take written form does not provide a principled reason for rejecting judicial reliance on it.52

These statements reflect a romantic conception of the Court and its role, and they

are profoundly at odds with the Court’s decision in Imperial Tobacco. Nor is Imperial Tobacco an aberration. In a subsequent case, British Columbia (Attorney General) v Christie, the Court unanimously rejected the argument that the rule of law principle could be invoked to supplement rights enumerated in the Charter:

The text of the Charter negates the postulate of the general constitutional right to legal assistance contended for here. It provides for a right to legal services in one specific situation. Section 10(b) of the Charter provides that everyone has the right to retain and instruct counsel, and to be informed of that right ‘on arrest or detention’. If the reference to the rule of law implied the right to counsel in relation to all proceedings where rights and obligations are at stake, s 10(b) would be redundant.53

The reasoning in Christie is, in essence, an invocation of the expressio unius

maxim: The Charter provides for a right to legal counsel in specific cases, and as a result no additional or greater right to counsel can be implied by the Constitution. As Mark Carter has noted, the opposite sort of argument was accepted by the Court in the Remuneration Reference, where the Court held that a broad, general right to judicial independence was implied by the Constitution despite specific references to independence in particular contexts in the text of the Constitution, and the Charter in particular.54

52 McLachlin, ‘Unwritten Constitutional Principles’, above n 37, 1-6. 53 [2007] 1 S.C.R. 873, [24]. 54 Carter, ‘The Rule of Law’, above n 49, 465-8.


IV THE LEGITIMACY GAP Standing back from all of this, some things are clear. Everyone agrees that the text

of written constitutions reflect basic principles – whether described as unwritten or underlying – and stated at a high enough level of abstraction there is sure to be considerable agreement about the nature of those principles.55 The significant question is: are those principles imbued with the full authority of the written constitution – in particular, with the written constitution’s supreme-law status – such that they may be invoked to strike down legislation?

In the Westminster tradition constitutions may be unwritten, written, or a combination of the two. The written components of a constitution are political settlements agreed upon by political actors, and can properly be understood only in the context of that settlement. Where a decision has been made not to include a bill of rights in a constitution, as for example in Australia, in my view the settlement can only be understood as a decision not to afford supreme law status to individual rights. It does not follow that the framers were ignorant of rights or otherwise indifferent to them; it follows only that they decided not to give the judiciary control over them. Control over rights has, by constitutional design, been left with the legislature.

This is where the problem arises. Convinced of the importance of rights, constitutional romantics naturally assume that there must be judicial power to enforce them. After all, they insist, rights are designed as a check on majoritarian excess; we cannot acknowledge the importance of rights whilst leaving them at the whim of the legislature. It all seems so sensible – so reasonable – but it is no less unconstitutional for that. To conclude not only that rights may be implied by the constitution but also that the judiciary has the power to enforce those rights – overriding legislation if necessary – is to repudiate the separation of powers the constitution establishes. It is to do violence to the judge’s duty to uphold the constitution, regardless of how noble the motivation to protect particular rights may seem to be.

The point is seen clearly if we eliminate the sorts of extreme examples – torture and genocide – that implied rights proponents proffer routinely. Realistically, as the Australian cases demonstrate, we are more likely to be concerned with legislation that establishes limits on freedom of expression, the right to vote, and so on. These rights are cherished in Australia, but there is disagreement in the community and amongst elected officials about their scope and the reasonableness of limits on them, and the disagreement is both sincere and profound. The implication of constitutionally protected rights is bound to be problematic, then, not because the people oppose the rights courts are likely to find implied, but because the rights that courts are likely to find implied are neither absolute not self-executing. Their meaning is contestable, and so too is the extent of the protection they provide in particular circumstances. They leave much for courts to

55 I leave aside questions about the provenance of those principles. Chief Justice McLachlin

asserts that unwritten constitutional principles are suggested and informed not only by customary usage and inferences from constitutional text but, more controversially, by international law treaties as well. She acknowledges that, on the traditional approach, treaties entered into by the executive branch of government are not binding unless incorporated into domestic law, and that courts ‘continue to struggle to understand the precise legal effects of a country’s international commitments’. The suggestion here is that the effect of these commitments is not simply a matter of the Court’s normative preference. However, Chief Justice McLachlin does no more than insist that ‘it surely must be the case that these [international commitments] can inform our understanding of the basic values that the state publicly and formally embraces’. See McLachlin, ‘Unwritten Constitutional Principles’, above n 37, 8.


resolve. Consider the difficulty the High Court of Australia necessarily has in making sense

of rights in the context of the Australian Constitution. Let us suppose that a right to vote is implied by the Australian Constitution.56 What is to be done when legislative ends come in conflict with that right? The answer, according to the majority of the High Court in Roach v Electoral Commissioner,57 is to ask whether the legislation is ‘reasonably appropriate and adapted’, which several justices acknowledge is a form of ‘proportionality’ test of the sort used in Canada and other countries with bills of rights.58 But that test is neither mandated nor even suggested by the Australian Constitution, and why would it be? – the Australian Constitution does not include a bill of rights, and so provides no guidance about the nature of rights or the limits that may be established on them. The ease with which a right to vote may be implied is belied by the difficult questions that arise in applying the right, and the same is true of most other rights that might seem attractive candidates for implication. Again, the decision not to have a bill of rights does not reflect ignorance of rights or indifference to them; it reflects a political settlement to deny the judiciary control over rights and the questions to they give rise. The judiciary is necessarily precluded from playing the sort of role it asserts for itself in applying implied rights.

If it is not legitimate to imply rights in the face of a decision not to adopt a bill of rights, what about the situation where the constitution includes a bill of rights? How is the political settlement to be understood in these circumstances?

Proponents of the common law constitution insist that rights do not depend on the existence of a bill of rights; a bill of rights, they argue, simply codifies rights that are otherwise immanent in the constitution. Thus, bills of rights protect some, but not all rights the people may have, and there is no reason for the courts to be reticent in recognizing and protecting such other rights as the constitution may imply.

I think that this misunderstands the nature and significance of the political settlement involved in the decision to adopt a bill of rights. To adopt a bill of rights is not to constitutionalise the protection of rights per se. It is, instead, to constitutionalise the protection of particular rights enumerated in the bill of rights that was adopted. Put another way: There is no one bill of rights that must be adopted once the decision is made to adopt a bill of rights. The framers of a bill of rights necessarily agree to include some

56 As Nicholas Aroney has noted, the Court rejected the language of implied rights in Roach v

Electoral Commissioner (2007) 233 C.L.R. 162, focusing on the text and structure of the Constitution, and in particular sections 7 and 24, but there is little difference in the substance of the reasoning from the implied rights cases. See Nicholas Aroney, ‘Towards the “Best Explanation” of the Constitution: Text, Structure, History and Principle in Roach v Electoral Commissioner’, in this issue.

57 (2007) 233 C.L.R. 162 [Roach]. Nicholas Aroney criticizes the Court’s application of the proportionality test in Roach, ibid.

58 Interestingly, Chief Justice Gleeson acknowledged the ‘danger’ of importing foreign proportionality analysis into Australian constitutional law and the prospect that it could lead to the application of an inappropriate standard of judicial review: ‘Human rights instruments which declare in general terms a right, such as a right to vote, and then permit legislation in derogation of that right, but only in the case of a legitimate objective pursued by means that are no more than necessary to accomplish that objective, and give a court the power to decide whether a certain derogation is permissible, confer a wider power of judicial review than that ordinarily applied under our Constitution. They create a relationship between legislative and judicial power significantly different from that reflected in the Australian Constitution, and explained at the commencement of these reasons’. He went on, however, to describe the reasoning in the foreign proportionality cases as ‘instructive’. Roach, ibid, [17]. Justice Heydon warned of ‘the difficulties of tests turning on whether legislation is ‘reasonably appropriate and adapted’ to the fulfilment of a particular purpose, or equivalent tests’, and of ‘too readily detecting tests of that kind in the Constitution’ [note 150].


rights and not others in their bill of rights, and in some cases to include particular conceptions of the rights they include.

Everyone involved in the political process understands this. Indeed, this is why negotiations around the adoption of a bill of rights are sure to be protracted and difficult: if there is to be a bill of rights, not everyone can get everything that they want. Some will have to pour a considerable amount of water into their wine, abandoning rights they would like to see included whilst accepting conceptions of particular rights that they consider narrow or incomplete. Others will have to agree to include rights they wanted to exclude, whilst accepting broader conceptions of some rights than they desire. It is difficult to adopt a bill of rights and the decision to do so is worthy of respect because it is an extraordinary political achievement.59 If the decision to adopt a bill of rights is to be respected, however – if the rights it includes are truly to be taken seriously – then it must be applied having regard not only to the rights it includes but also to the rights that it does not.

This latter point is subtle but it is important, for bills of rights do not usually preclude the protection of particular rights. On the contrary, the rights enumerated in bills of rights are typically expressed in vague terms – ‘majestic generalities’, as they are often called60 – and there is bound to be controversy over their nature and scope as a result. Whether a particular right falls within the scope of the rights enumerated in a bill of rights is often a difficult question, and the answer will not be found in an interpretive maxim. The answer must be established through argument, and a plausible and legitimate argument must be grounded in an understanding of the constitution and the political settlement it reflects.

The example of property rights seems to me to be the best way to make this point in the context of the Canadian Charter. Unlike the US Bill of Rights,61 the Charter does not specifically include a right to the protection of property, and from the outset it has been acknowledged that property rights enjoy no constitutional protection in Canada. I agree that the Charter does not protect property rights, but am confounded by the unwillingness of those who acknowledge this point to accept the larger point that it illustrates: the Charter is a finite instrument. It protects the rights that it enumerates and no more. Those who are pleased to accept that property is not protected – and this is the

59 It is almost invariably forgotten in Canada that the agreement of the provinces to adopt the

Charter – all but Quebec agreed – was achieved only following the addition of section 33 of the Charter, the ‘notwithstanding clause’, which provides as follows: (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. In short, the notwithstanding clause permits provincial legislatures and the federal Parliament to legislate regardless of some, but not all, Charter rights for renewable five-year terms. The notwithstanding clause is commonly referred to as the Charter override, but this is inapt; the clause was included to address provincial concerns over the power of judicial review and the way in which courts might interpret Charter rights, rather than concern about or a lack of commitment to the rights themselves. At the end of the first generation under the Charter, however, the notwithstanding clause has fallen into desuetude, and its use outside of Quebec is practically unthinkable. See Grant Huscroft, ‘Rationalizing Judicial Supremacy: The Mischief of Dialogue Theory’ in James B. Kelly and Christopher P. Manfredi (eds.), Contested Constitutionalism (2009) 50.

60 Fay v New York, 332 U.S. 261, 282 (1947) (per Justice Jackson, describing the Fourteenth Amendment).

61 The Fifth Amendment provides: ‘No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation’.


vast majority of Canadian constitutional scholars – must also accept that the Charter does not protect every right that they want to be protected, even if some vaguely worded provision or other of the Charter might otherwise be thought to be capable of accommodating additional rights. In short, once it is accepted that the Charter is finite it must to be accepted that the silence of the Charter might have normative significance that must be respected.62

The alternative is to suppose that the Charter is no more than a partial codification of rights that are otherwise immanent in the Constitution. Theoretically sophisticated defences of this position can be mounted, to be sure, but they simply do not reflect Canada’s constitutional history. The notion that once a political settlement is reached on the protection of rights – a settlement that is immunised against future change, save by extraordinarily difficult amendment procedures – the courts may, in effect, ignore that settlement by finding additional rights to be implied by the constitution is subversive of the democratic nature of the constitutional order.

This holds true even if the rights said to be implied simply replicate, rather than supplement, the rights protected in the bill of rights. That is so because the protection of bills of rights is idiosyncratic. Consider the protection of freedom of expression in the Canadian Charter. The Charter does not simply protect freedom of expression. The freedom of expression is protected in the Charter subject to such reasonable limits as may be demonstrably justified in a free and democratic society (section 1), and also subject to ‘notwithstanding clause’ (section 33), which allows provincial legislatures and the federal Parliament to legislate notwithstanding certain Charter rights, including the freedom of expression.63 Suppose that Parliament were to legislate to establish limits on election spending, to regulate political parties, or to do something else that implicated the freedom of expression in a fundamentally important manner. Now suppose that Parliament were to invoke the notwithstanding clause – perhaps because it disagreed with the way in which the Court has interpreted the freedom of expression, or allowed limitations on it.

According to the Charter such legislation would be valid per se, subject only to compliance with the manner and form requirements the Charter establishes. The decision to invoke the notwithstanding clause is not subject to judicial review; it may be invoked for good reason or bad without judicial authorization or subsequent approval. As the Court has recognised, the whole point of the notwithstanding clause is to limit the reach of judicial review under the Charter.64 Could it really be contemplated that in this scenario a Court might, nevertheless, rule as follows?:

Although the legislation invokes the notwithstanding clause and so precludes judicial review of the legislation under the Charter, the freedom of expression is fundamental to the Canadian constitutional order – it is an underlying principle of that order – and the Court necessarily has the authority to strike down any legislation that undermines that order, regardless of the Charter.

Such a ruling would have no claim to constitutionality. Indeed, it is simply

62 The argument is made more fully in Grant Huscroft, ‘Vagueness, Finiteness, and the Natural

Limits of Interpretation and Construction’ in Grant Huscroft and Bradley W. Miller (eds.), The Challenge of Originalism: Theories of Constitutional Interpretation (2011).

63 See the discussion above n 59. 64 Ford v Quebec (Attorney General) [1988] 2 S.C.R. 712, [33]: ‘Section 33 [the notwithstanding

clause, set out above n 59] lays down requirements of form only, and there is no warrant for importing into it grounds for substantive review of the legislative policy in exercising the override authority in a particular case’.


inconceivable.65 The decision to adopt the Charter not only empowered the courts in regard to constitutionally protected rights; it necessarily delimited their constitutional authority. To overrule a constitutionally valid exercise of legislative authority on the basis of principles implied by the very constitution that specifically authorises the legislation in question is to engage in sophistry. The argument is remotely respectable only if it is supposed that a Canadian legislature would invoke the ‘notwithstanding clause’ to legislate in a manner that is utterly unthinkable, and demonstrates once again why the argument for implied rights depends on extreme hypotheticals. There is simply no place for it in the Canadian constitutional order.66

Where the framers of a constitution decide not to adopt a bill of rights, as for example in Australia, the arguments against implied rights apply with even greater force. The decision not to adopt a bill of rights means that the political settlement is not one of degree – a matter of which rights should be protected – but of kind: individual rights have not been accorded constitutional protection and Courts cannot confer constitutional primacy on them. Judges have long mitigated perceived problems caused by this limitation on their power through what is now orthodox statutory interpretation technique: legislation that limits fundamentally important rights is interpreted strictly, and clear wording is required if such rights are to be abrogated. This technique seems to me unobjectionable but it can accomplish only so much, and when it is considered inadequate the allure of implied rights theory is sure to be great. It is much easier to imply rights than it is to amend the constitution.

But it is precisely because it is so difficult to amend the constitution – in Canada as in Australia – that the judiciary must take great care in interpreting and applying it, respecting the political settlement that the constitution reflects even where that settlement does not meet with its approval.

I suppose it is possible for a constitutional order to develop in which no decision is made to adopt or reject a bill of rights at all, whether at the outset or during the life of the constitution, and constitutional practices build incrementally over time. In this sort of order, the notion that the judiciary could, legitimately, find rights to be implied by the specific commitments of the constitution seems plausible, and each such implication might facilitate additional ones. One can well imagine a common law bill of rights emerging at some point, but unlike a written bill of rights ratified by the people such a common law bill of rights would neither reflect nor effect a political settlement; being the product of judicial reasoning, it would necessarily remain a work in progress, and the scope of the judiciary’s power would depend on the extent to which the people and their elected representatives acquiesced.

65 David Mullan raises precisely this example, but does so in a way that downplays the

constitutionality of legislative action taken in accordance with the Charter, asking: ‘Would the protections implied from the structure of the Constitution Act, 1867 (and presumably now also sections 3 to 5 of the Charter) provide a basis for trumping the formal authority section 33(1) affords to Parliament and the legislatures?’ He does not answer the question, however, describing it is a ‘theoretical possibility’. See Mullan, ‘Underlying Constitutional Principles’, above n 36, [13]-[15] (emphasis added).

66 The argument can be tested further by changing the hypothetical to create a conflict between the provisions of the Charter and the underlying constitutional principles. Suppose that an agreement were reached to amend the Charter to preclude a particular interpretation of a Charter right in future cases. Such an amendment, requiring resolutions of Parliament in addition to resolutions from at least two-thirds of the provincial legislatures, representing at least fifty per cent of the population of all of the provinces (Constitution Act 1982, s 38(1)) would be extraordinary. Even more extraordinary, however, is the notion that the Court could, in the face of such an amendment, purport to enforce a broader conception of the right on the basis that it is implied by the Constitution.


But even a brief description of this sort of constitutional order demonstrates how foreign it is to what we know of Canada and Australia. These are, on any understanding, healthy democratic societies in which the rule of law and human rights are respected. This is not to say that there is no disagreement about the nature of the rule of law, or even about the most basic human rights. On the contrary, there is plenty of disagreement, and that is a good thing: the existence of disagreement and the willingness to address and to attempt to resolve it makes for a healthy democratic society. It is not a cause for regret, then, and still less a reason for courts to attempt to impose a sort of constitutional closure on the process by making decisions founded on implied constitutional rights.

Chief Justice McLachlin puts aside this sort of argument, made most prominently by Jeffrey Goldsworthy,67 describing it as only a partial refutation of the importance of unwritten constitutional principles:

It applies only in a ‘healthy democratic society’, where cases of ‘clear and extreme injustice are rare’, and only to ‘debatable cases’, where it is easy, and arguably right, to say that judges should leave the final resolution to the legislature or the executive. But what of unhealthy societies, less debatably wrong laws?68

The answer, I am afraid, is that Chief Justice McLachlin’s argument is relevant only

to countries in which it can do no good at all. It is an argument for stout-hearted judges to attempt to rein-in the excesses of a despotic regime, and should have no bearing on either Canada, Australia, New Zealand, or any other well-functioning democratic state. I can do no better than to allow Goldsworthy the rejoinder:

It is unwise to claim on behalf of the judiciary an authority that will undermine democratic decision-making in many cases that are certain to arise, in order to provide a remedy for extreme situations that are very unlikely to arise, and which would probably be useless if they did (why would a wicked government meekly submit to judicial admonishment?).69

V CONCLUSION I have argued that courts need to think carefully about what it means to adopt a bill

of rights, or a particular bill of rights, before they consider implying rights, no matter how plausible or normatively desirable a particular implication may seem. It might be thought that the result is odd: on my account the adoption of a bill of rights closes-off avenues that reason might have suggested, but so too does a decision not to adopt a bill of rights.

There is nothing odd, however, in the notion that courts should respect the political settlement that underlies the constitution they are charged with upholding. I do not say that it is always easy to determine the nature and significance of that settlement. I say only that respect for the political settlement is the starting point for any legitimate approach to constitutional rights.

67 Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy (1999). 68 McLachlin, ‘Unwritten Constitutional Principles’, above n 37, 9. 69 See Jeffrey Goldsworthy, ‘Unwritten Constitutional Principles’ in Grant Huscroft (ed.),

Expounding the Constitution: Essays in Constitutional Theory (2008) 277.

romance, realism, and the legitimacy of implied rights · * faculty of law, the university of...

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