In his latest Postmedia column, Andrew Coyne has some harsh and cogent observations about the Tories’ failure to come to terms with the Canadian Charter of Rights and Freedoms, and (Canadian) constitutional law more broadly. Mr. Coyne’s column is well worth reading, and some of his observations are similar to my own.
Mr. Coyne points out that despite their purported embrace of the principle of limited government, the Tories “get surprisingly antsy, once in office, about having their own discretion circumscribed.” In the face of recent judicial decisions having gone against the federal government, they complain about judges making policy in Parliament’s place (one suggestion that if judges want to make policy, they ought to get themselves elected even coming― to Mr. Coyne’s justified mirth ― from a Conservative Senator) and frustrating the will of the majority.
These complaints, Mr. Coyne argues, rest on a profound misunderstanding of the role of law (and, let us add, in more technical terms, of the Rule of Law):
[a]ll laws, not just constitutions or charters of rights, constrain government discretion. That’s the point. We want governments to act in predictable, non-arbitrary ways, confined to the powers we explicitly grant them through our elected representatives.
Constitutional law, Mr. Coyne adds, is no different, except in that changing it requires not only a decision of Parliament, but also the agreement of the provinces. And constitutional law, supreme over laws enacted by Parliament, has always been with us in Canada, and courts ― first the Judicial Committee of the Privy Council, and later the Supreme Court of Canada ― have always been enforcing it. The Charter expanded the scope of judicial review but did not invent it; nor was it the beginning of “judicial activism.” Furthermore,
The point of judicial review is not, as it is sometimes said, to give judges the last word. It is to hold Parliament to its word. If the law is to serve its intended role of constraining government discretion, you can’t simply leave it to governments, or even Parliament, to interpret it for themselves.
Besides, although courts (as well as other branches of government) sometimes get it wrong, Parliament can often achieve its objectives in ways that comply with their interpretations of the constitution. And if that’s not possible?
Amend the constitution. Appoint better judges. Make the case for a more restrained theory of jurisprudence. Change how the law is taught. Conservatives used to pride themselves on taking the long view of things.
Parliament can also put much more effort into screening the laws it enacts for constitutionality, thus avoiding conflict with the courts in the first place. And if people are concerned about the erosion of Parliament’s powers, they should worry more about the executive’s taking over its role, than about the courts.
This is largely right. One can quibble with a couple of things Mr. Coyne says. For instance, he is not quite right that pre-Charter constitutional litigation “usually involved disputes between different levels of government, each vigilant that the other not intrude on its prerogatives.” There was some of that, but also plenty of cases where individuals or, perhaps more frequently, businesses challenged the ability of a government to regulate them, arguing that the regulation in question breached the federal division of powers. But of course this only reinforces Mr. Coyne’s broader point, which is that the imposition of limits on elected officials by courts at the behest of citizens is not an innovation brought forth by Pierre Trudeau. Indeed, Mr. Coyne should perhaps have noted that many of the recent Supreme Court decisions that are so angering the Conservative government ― notably the Senate reference and the invalidation of Justice Nadon’s appointment to the Court ― have nothing to do with the Charter. In any case, a few details aside, Mr. Coyne’s article is impressively thoughtful and very persuasive.
One particular point of Mr. Coyne’s which I want to emphasize because it echoes some observations I made here is that the Conservatives have failed to “take the long view of things” and undertake any serious effort to fundamentally change Canadian constitutional law. Beyond vague and, as Mr. Coyne shows, contradictory or meaningless if not actively pernicious claims that judges should let Parliament make policy, they have not articulated anything like a constitutional theory that might be compelling enough for courts to embrace. They have not even tried to do so. This government, as I put here, is one of “lazy revolutionaries” ― unwilling to accept the world as it is, lacking respect for established institutions, and at the same time unwilling to do the long-term work necessary to change them. It is reassuring that it is finally being called out on it.