The Supreme Court of Canada in the Age of Rights: Constitutional Democracy, the Rule of Law and Fundamental Rights Under Canada's Constitution
(2001) 80 Can. Bar Rev. 699-748
50 Pages Posted: 8 Aug 2012
Date Written: 2001
In the aftermath of the Second World War, democratic nations have embraced judicial protection of individual autonomy, equality and respect for human dignity. While each nation's arrangements have distinctive features, there is a discernible model of postwar rights protection. This essay traces the role of the Supreme Court in Canada's transformation into such a postwar, rights-protecting polity both before and after the adoption of the Charter in 1982. Just after the war, the Supreme Court took the initiative to protect rights just as Canada reached political independence and the Court became Canada's highest appellate court. Facing challenges to the most basic assumptions of liberal democracy, some of the judges inferred protection for fundamental freedoms from the structure of Canada's parliamentary democracy, the federal-provincial division of powers and the heritage of the flexible, unwritten British constitution. Although the Court ultimately abandoned this approach, it recently returned to this legacy in important reference cases that deliberated upon the place of direct democracy and the independence of the courts in our constitutional order. This essay compares the Court's understanding of its role in protecting rights under this traditional approach as well as under the Charter, to the postwar model of rights protection. It notes that the Court has on occasion departed from this model to resolve a perceived tension between vigilant judicial protection of rights and the prerogatives of the executive and the legislature in our system of government. The author argues that Canada's adaptation of the postwar model to the Canadian context resolves that tension without prompting such departures. Support for this argument rests on a number of considerations. These include the conceptual substructure of unwritten constitutional norms, the institutional structure and remedial purposes of the Charter, and the common law's affinity to the postwar model of rights-protection.
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