Supreme Court in the Charter Era

Supreme Court of Canada: History The Charter Era

Introduction to Supreme Court in the Charter Era

The Constitution Act of 1982 significantly changed the role of the Supreme Court. The Constitution Act entrenched into the Constitution a document called the Canadian Charter of Rights and Freedoms, which guaranteed individual liberties and group rights. Following the passage of the Constitution Act of 1982, the Supreme Court interpreted the new charter as overturning the theory of parliamentary sovereignty, which had given precedence to the popular will expressed by legislatures. Instead, the charter established a system of constitutional supremacy, in which the laws passed by legislatures had to conform to the rights protected in the Constitution.

In this system, the judiciary took on an expanded role as the guardians of the Constitution. The charter enables citizens whose rights have been infringed to appeal to the courts. In decisions following the passage of the charter, the Supreme Court explicitly stated that the charter should be given a large and liberal interpretation and that the government's parliamentary and executive powers were subject to judicial review. In doing so, the Court rejected its earlier conservatism.

After 1985 the Supreme Court became increasingly activist. In addition to deciding in 1998 that Québec cannot unilaterally secede from Canada, the Court also struck down legislation that criminalized abortion, in R. v. Morgentaler (1988). In RJR-MacDonald v. Canada (1995) the Court overturned a law that limited the freedom of corporations to engage in advertising. The justices also ordered governments to respect the rights of various groups of people, including people with disabilities (Eldridge v. British Columbia [1997]), gays and lesbians (Vriend v. Alberta [1998]), and aboriginal people (R. v. Marshall [1999]). The Court also showed an interest in protecting the rights of the criminally accused, in R. v. Askov (1990). In Brooks v. Safeway Canada (1989), which found that discrimination against pregnant women was unconstitutional, the Court explicitly overruled its decision of only a decade earlier in Bliss.

A new set of dilemmas emerged as a result of such activism. Critics on the left accused the Court of favoring corporations at the expense of unions. Critics on the right argued that the Court went too far in supporting the rights of minorities and women. Disagreements arose within the Court itself, resulting in a significant number of 5-4 decisions. During the 1980s and 1990s sharp divisions appeared on the Court between traditional and conservative justices and those who were progressive and activist in applying the charter.

Justices were also divided between those who considered liberty the primary Canadian value and those who held equality to be primary. The former believed that the state should fulfill only minimal obligations and that society should remain as unregulated as possible. The latter believed that significant inequalities pervaded Canadian society and that the state should intervene on the side of the disadvantaged. For example, in one case, R. v. O'Connor (1995), the majority of justices, who favored liberty, argued that a man accused of sexual assault was entitled to have access to the therapy records of the women who accused him, on the basis of his right to prepare a full answer and defense. On the other hand, the justices who favored equality, who were in the minority in the case, held that such access violated women's equality rights and would discourage women from coming forward with complaints about sexual assault.

Some critics fear that as the Supreme Court has become the ultimate guardian of the Constitution, the democratic process has been eclipsed by an unelected and unaccountable judiciary. Politicians, legal organizations, and some newspaper editorials have demanded a more-open process of appointing justices to the Court. Both the Meech Lake Accord of 1987 and the Charlottetown Accord of 1992 contained measures that would have formalized the appointment process in the Constitution, but both accords failed to be enacted. No agreement has been reached on what reforms would be appropriate, and the federal government has given no indication that it is willing to open up the appointment process.

Since its founding in 1875, the Supreme Court of Canada has evolved from humble and marginal origins to become an institution that occupies a prominent place in Canada's political life. In the late 1990s the makeup of the Court was in transition, as several of the justices who had been influential in developing jurisprudence relating to the charter either resigned or died. As a result, the future direction of the Supreme Court remained difficult to predict.” (1)

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Notes and References

Information about Supreme Court in the Charter Era in the Encarta Online Encyclopedia

Guide to Supreme Court in the Charter Era

Law is our Passion

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This entry was last updated: August 24, 2014