SCC Skepticism

In a recent piece in Maclean’s, Adam Goldenberg explains why the Supreme Court of Canada (SCC) does not suffer from the same partisan interest the Supreme Court of the United States (SCOTUS) does. He lists three main reasons: (1) the nature of partisanship in the US; (2) the American conservative movement’s incubator for legal talent; and (3) American political parties galvanizing support on the strength of controversial court rulings. I accept all of these reasons and invite those interested to read Goldenberg’s piece.

But one more should be added, without which the story is incomplete: American citizens know where law is made.  They realize (even without knowing the legalities) that winning a constitutional debate in court wins the democratic debate for all time.  The matter is put beyond the reach of the regular democratic process. Canadians should be more critical of this reality in our own country.

Two forces have led us to this point. The first is both Canada and the US courts do not shy away from deciding controversial issues. In Canada, Bedford and Carter dealt with prostitution and assisted dying, respectively. In the United States, Obergefell dealt with same sex marriage. The fact that courts often delve into these issues (or, as defenders of the courts would say, are forced into these issues by the nature of an entrenched bill of rights) makes them a lightning rod for political attention.

At the same time, opinion polls in the United States show that Americans have record low confidence in their political institutions, and Canadians are no different. Confidence in government is at all-time lows. We see this in the context of Aboriginal law, where Aboriginal groups have moved to the courts as the primary vehicle by which they can vindicate their rights. One can surmise that they have done so because of the historical ineptitude of the Government of Canada.

These forces together understandably cause citizens to make a choice. Recalcitrant politicians and a lack of confidence in institutions? The slog of convincing one’s fellow citizens? Or, a sweeping court declaration which forces legislatures to respond?

In the US, citizens largely made the latter choice to resolve their plights. Justice Antonin Scalia remarked in Planned Parenthood v Casey that the SCOTUS, rather than legislatures, were increasingly subject to intense political pressure by both sides of hot-button issues—in that case, abortion. The letters, comments, and protestors directed to the SCOTUS, not the legislatures, was an odd sight to Justice Scalia, who viewed the development skeptically. To Justice Scalia’s mind, because the American people “are not fools,” they recognized that the SCOTUS had become the leading institution where these value-laden issues were decided.

While Goldenberg notes that much of this political attention focuses on what the original meaning of the US Bill of Rights means in modern America, I think this overstates the case. The political attention is just that, naked politics, not shrouded in any legality. Many people want the court to achieve their explicitly political ends.  As for originalism, originalists have not held a majority of the US Supreme Court, at least in the last twenty years. Justice Scalia himself was known as a fiery dissenter. For example, under the 8th amendment (cruel and unusual punishment), the SCOTUS developed a profoundly non-originalist test—the so-called “evolving standards of decency” approach. While Justice Kagan’s point that we are all originalists now may be true, it is not true that originalism has been a wholly successful legal project in the United States.

No matter what one thinks of originalism, it provides a limiting principle on otherwise free doctrinal reign. But because it has not been embraced consistently in the US, and no other real principle has come forward, the political parties have latched on to the SCOTUS nomination process as a means to vindicate their particular versions of the good. Since the Bork confirmation hearings, both parties in the US have used the process because they know its consequences. They know that getting the “right” people on the Court will do far more to change laws than simply electing people to the legislature. We see this sort of discussion now with the retirement of Justice Anthony Kennedy, and the ludicrous proposal of “court-packing” to block a Republican nomination.

The Americans have gone too far, and Goldenberg rightly decries this development. But one has to ask whether it is all that bad given the stakes. People understandably want a say in the laws that govern them. If the SCOTUS takes a bigger piece of the pie of the law-making process, then citizens should have the right and the responsibility to campaign on “the court” as an issue.

In reality, Canada’s SCC is just as central in the Canadian polity as the SCOTUS is in the American. Despite the Court’s recent ruling in Comeau, the test to revisit previous precedents is fairly relaxed, and so litigants understandably invite the SCC to do so. This approach invites members of the Court to decide when, according to them, a particular precedent no longer jibes with modern times.  Whatever the strength of the Court’s stated commitment to living constitutionalism, it generally supports its “ideological sex appeal,”   viewing its role as deciding what is best for Canadian society. As Leonid pointed out in a previous post, the SCC has an ideology, but it is probably not evident to most.

A good example is the SCC’s opinion in Saskatchewan Federation of Labour. There, the SCC majority spoke of giving “benediction” to the right to strike. The full quote by the SCC majority is instructive: “[T]he right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction” [3]. In this example, it was the SCC that decided that now, rather than some past time, was the right time to expand a constitutional right, forever removing it from the realm of democratic debate. This is a political conclusion at heart, more an assessment of what modern times demand rather than what the law does.

And so, it is understandable that political groups should want to have a role in moving the Dworkinian Hercules. But as Goldenberg points out, Canadians have not latched on to these developments as a political matter. In fact, many of the criticisms I’ve advanced to the Saskatchewan Federation of Labour case are common in the US, but less common in Canada. Canadians seem to be  sluggish in response to these tendencies in our own SCC. I can’t speak to why this is; but perhaps it is true to say, as the National Post did, that Canadians are simply “different” than Americans—more trusting of government institutions.

In light of the stakes, Canadians could learn from Americans in taking an active, critical interest in what the SCC does. While I do not advocate a full-blown American approach to judicial nominations, there are various ways Canadians should respond to this phenomenon. Justice Scalia’s prescription was a rigorous application of original meaning originalism, which he thought was the antidote to the excesses of living constitutionalism. I am partial to this approach, but I need not argue this point to make the following assertion: Canadians should first fully reckon with what the SCC is actually doing, whether one thinks its good or bad. If the SCC makes law, as so many legal realists believe, we should hold them to the same standards we hold legislatures. We should, in short,  become Supreme Court skeptics, rather than fawning admirers of our nation’s highest jurists.

This is a distinctly second-order response to the issue, but the most realistic one in the intellectual and legal climate in which we find ourselves.  Canadian academics certainly engage vigorously with SCC decisions, but the extent to which this filters into the larger society (or the extent to which it is representative of all potential critiques) is an open question. We should be concerned with fostering a healthy skepticism of the SCC, similar to the skepticism we hold for legislatures.

This means fostering an open climate of academic, cultural, and political discussion about the SCC, and viewing judges as humans, rather than celebrities—no more capable of coming to conclusions about the nature of human rights than any Joe or Jane Six-Pack. This is a more radical proposition than one might think; consider Leonid’s comments in his recent post about New Zealand’s anti-court criticism bill.

This could also involve a more open nomination process. I saw nothing particularly wrong with the selection process of Justice Marshall Rothstein. His “confirmation” hearings, while in reality non-binding, at least gave those interested a look into the mind of a man who would serve on the SCC. We can have these hearings without devolving into an American three-act-play, or a challenge to the independence of the institution. The fact that Justice Rothstein’s hearing was a model of decorum is an example of this working well.

Goldenberg’s piece underlines the problems with the American approach, but I think it paints far too rosy a picture of our courts.  The Americans understand the consequences of their system and are taking part in it. Canadians, as Goldenberg seems to admit, do not. This is not a fact of which we should be proud.

 

 

The Crown and the Oath

A friend comments on my earlier post, in which I argued that the oath of allegiance to the Queen which would-be Canadian citizens are required to swear is unconstitutional:

The wording of the oath of allegiance found in the Citizenship Act flows directly from the preamble and various sections of the Constitution Act, 1867 which clearly established the Queen as the head of state and Canada being a nation under the Crown. One part of the constitution cannot (the Charter) cannot be used to attack an act that is clearly authorized by another part of the constitution. The courts used this reasoning to dismiss attacks on separate Catholic School boards before. On a more basic level, it’s inconceivable that an oath of allegiance to the constitutionally appointed head of state can be found to be unconstitutional. You might say that is a tautology.

With respect, I think this is wrong.

It is true, as my friend says, that one part of the constitution cannot be invoked to challenge another. So, for instance, the Supreme Court has held in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, that the Charter did not apply to an exercise of Parliamentary privilege, because privilege is itself a part of the constitution. For the same reason, as my friend points out, courts have rejected Charter-based challenges to Catholic schools. That example illustrates the precise ― and fairly narrow ― scope of this doctrine. Catholic schools are specifically protected by subs. 93(1) of the Constitution Act, 1867. Their existence is effectively made part of the constitution.

The oath of allegiance is not. The Crown is part of the constitution of course (it is the nominal holder of the executive power pursuant to s. 9 of the Constitution Act, 1867 and a constituent component of the legislative power, pursuant to s. 17). But the Constitution Act, 1867 nowhere mentions or even implies the existence of an oath of allegiance for new citizens. It does mention oaths to be taken by voters (ss. 41 and 84), Lieutenant-Governors (s. 61), and members of Parliament and provincial legislative assemblies (s. 128) ― but not new citizens, even though it specifically contemplates “naturalization” as a legislative power of Parliament (s. 91(25)).  This suggests that the oath of allegiance is a mere creature of statute, and thus fully subject to the Charter.

As to my friend’s “more basic point,” it is similar to what the majority of the Federal Court of Appeal Roach v. Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 F.C. 406, seems to be saying:

Of course, the total consequences of the swearing or affirming of these twenty-four words (as opposed to their nominal burden) are not at all trivial. Not only are the consequences as a whole not contrary to the Constitution, but it would hardly be too much to say that they are the Constitution. They express a solemn intention to adhere to the symbolic keystone of the Canadian Constitution as it has been and is, thus pledging an acceptance of the whole of our Constitution and national life. The appellant can hardly be heard to complain that, in order to become a Canadian citizen, he has to express agreement with the fundamental structure of our country as it is.

But I do not think that the equation of the oath of allegiance to the Queen with the Crown and the constitution itself works. Not every country requires oaths of allegiance to the head of state as opposed to the state itself or its constitution. The United States do not require its citizens to swear allegiance to the president. Even a country with “a constitution similar in principle” to Canada, Australia, does not require new citizens to swear an oath of allegiance to the Queen. Now if Canada also required an oath to the constitution and somebody challenged it on the basis that the constitution is monarchical, the argument might have more strength. As it is though, I do not think that it succeeds.

Constitutional Implications

I have come across a fairly interesting new article, “A Comparative Analysis of the Doctrinal Consequences of Interpretive Disagreements for Implied Constitutional Rights,” by Zoë Robinson, of DePaul University’s College of Law. On the basis of a comparison between Australia and the United States, specifically between the development of a right to free political communication in Australia and the right to abortion in the U.S., Prof. Robinson argues that judicial implication is a rather ineffective way of  protecting rights. Implication of rights is always the result of dubious interpretive methods; it is vulnerable to criticism, which makes judges self-conscious; it also results in “a paucity of interpretive resources which could support doctrinal developments” (96). I think prof. Robinson is right, as an empirical matter, about the weakness of implied rights, but I doubt that her explanations for it are sufficient, or even correct.

To help us think about the problem of implied rights, it is useful to cast a wider net than prof. Robinson does. One way of doing this is to bring Canada into the comparison. We have, after all, our own “implied bill of rights,” consisting mostly of the freedom of (political) speech. Another, which reflecting on implication in Canadian constitutional law suggests, is to compare implied rights not to “express” rights, as prof. Robinson does, but to other implied constitutional rules, which in Canada we know as “underlying constitutional principles,” and which also exist in American law (the separation of powers jurisprudence is, for example, built on the implications of the three-branch structure of government created by Articles I, II, and III of the U.S. Constitution).

The story of Canadian “implied bill of rights” cases seems to suggest that prof. Robinson may well be right. Despite high-minded rhetoric and apparent promise, the idea of rights implicit in the preamble of, or the institutions created by, the Constitution Act, 1867, was never endorsed by a majority of the Supreme Court, and never served as the actual ratio decidendi of a case; it was always raised in obiter by, at most, a couple of judges at a time. While lauded by some academics, notably F.R. Scott, it was criticized by others, notably Bora Laskin. And in the late 1970s, the Supreme Court came to reject it, in Dupond v. City of Montreal, [1978] 2 S.C.R. 770, (though justice Laskin, ironically, dissented). Despite this rejection, and the subsequent coming into force of the Charter, the “implied bill of rights” is not quite dead and buried (Justice Lebel, for example, referred to it with approval in his concurring opinion in R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489), but there is not much life in it either.

Yet looking at underlying constitutional principles provides a useful contrast. You’d think that they would be affected by the same problems as implied rights – dubious origins, vulnerability to criticism, impossibility to develop into something jurisprudentially useful. And to some extent they certainly are. They have indeed been criticized – for example, in a scathing paper by Université de Montréal’s Jean Leclair – and the Supreme Court’s unanimous, and dismissive, almost contemptuous, rejection of underlying principles as source of implied constitutional protections in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, seems to confirm that implication is not a reliable source of rights. But that’s not the whole story of underlying principles. They have been applied to powerful effect in judicial independence cases (indeed, it is certainly arguable that the Supreme Court has gone too far with the principle of judicial independence), and also in the Manitoba Language Rights reference, [1985] 1 S.C.R. 721,  in which the Supreme Court managed to declare unconstitutional Manitoba’s entire statute book unconstitutional for not being enacted in both official languages without creating chaos, by the device of suspending the declaration of invalidity, in the name of the underlying principle of the Rule of Law.

What the cases involving underlying principles seem to suggest is that these principles are more easily used to work out fundamentals of constitutional structure than individual rights. The situation in America, at least as I understand it, confirms this thought, since separation of powers cases there seem to excite nowhere near the same degree of hostility, and to be subject to nowhere near the same degree of judicial self-doubt, as cases that can be described as involving implied rights. Why this should be so, I do not quite understand. Perhaps it is merely because rights cases are more high-profile and (or because) more intelligible to the layperson than structural cases. Perhaps there are other reasons why courts are more confident in their ability to get constitutional structure right than individual rights. However that may be, implied constitutional rules are not bound to be anemic and fruitless. If implied constitutional rights are, there ought to be some further explanation, specific to rights themselves, and not applicable to all constitutional implications.

Ideology in Constitutional Scholarship

Is most writing about constitutional law and theory (in the United States, but perhaps also in Canada) “intellectually corrupt”? In a post on the Bleeding Heart Libertarians blog, Jason Brennan, a philosopher and economist from Georgetown, says that it is. But, while his description of constitutional scholarship is, unfortunately, right, his explanation and evaluation of the problem seem too simplistic to me.

The problem with constitutional scholarship, says prof. Brennan, is

that almost everybody does the following:

1. Start with a political philosophy–a view of what you want the government to be able to do and what you want to the government to to be forbidden from doing.

2. Take the Constitution as a given.

3. Reverse engineer a theory of constitutional interpretation such that it turns out–happily!–that the Constitution forbids what you want it to forbid and allows what you want it to allow.

Academic arguments to the effect that something desirable is, unfortunately, unconstitutional, or that something undesirable is, alas, constitutional, are too few and too far between. Scholarship becomes indistinguishable from legal or political argument (these two being the same thing). “But,” says prof. Brennan, “academic legal theory is supposed to aim at truth. Legal theorists are not–or should not be–fighting political battles.”

If a scholar in another field – say in the interpretation of philosophical texts – acted like constitutional scholars act in the interpretation of legal text, we would think them “intellectually corrupt.” So why is it ok for constitutionalists to behave this way? Prof. Brennan claims that

[t]he only real defense of this practice I’ve seen is one that starts by arguing that the law is supposed to be normative and authoritative. However … –the case for legal positivism seems so strong that … this [does not seem] plausible.

In his own view, which he labels as “legal positivist and legal realist,” “laws [are]sociological phenomena, and whether a law is good or just is a contingent fact.” The constitution means what it means, not what whoever is reading it would like it to mean.

Prof. Brennan’s description of constitutional scholars as fighting political battles certainly rings a bell. His post was written in the context of the litigation surrounding president Obama’s healthcare reform, and academic commentary on it was, indeed, largely marked by the commentators’ ideology. But this phenomenon is very widespread. Indeed, what I have seen and heard at NYU suggests that some academics, at least, though don’t know how many, are open about regarding ideological acceptability as a criterion for assessing the value of a theory.

But is constitutional theory tainted by ideology because legal academics are intellectually corrupt, or because they are completely misguided about legal philosophy and fail to recognize the overwhelming arguments in favour of legal positivism, as prof. Brennan suggests? I think that things are much more complicated.

The problem with his explanation is that it assumes that there is a truth of the matter about constitutional interpretation, which a constitutional theory should uncover. But there is no objective truth about what a constitution means. To be sure, some constitutional provisions are clear enough, and one would be hard-pressed to find ideological interpreters disagreeing about their meaning. Many in the United States, especially on the political left, think that the equality of states’ representation in the Senate is morally indefensible, but no left-wing academic will say that the constitution doesn’t require it. But much of the constitution is not clear. Nor is it obvious how the meaning the less clear provisions is to be ascertained. It is possible, I think, to exclude some constitutional interpretations, even of less clear provisions, as quite obviously wrong. Whatever the prohibition on “cruel and unusual punishment” means, it surely makes the imposition of torture as a punishment unconstitutional. But what about death penalty? Different people can have different, reasonable, answers to that question, and they can – indeed they must – argue about which of these reasonable answers is better.

Law, in Jeremy Waldron’s words, is an “argumentative practice.” We argue about what this or that legal rule means – and that is an inextricable part of what law is, not a sad accident. This is especially true of constitutional law, for a number of reasons. One is simply that the stakes it involves are very high. What the state can and cannot do matters, sometimes at the level of policy, sometimes at the level of morality if not in the day-to-day lives of most people, and sometimes both. Another reason for the special importance of disagreement and argument to constitutional law is that constitutional texts are more vague than most legal sources. This is partly due to the need to secure agreement, often a super-majority agreement, on a text despite disagreements over specific rights, and to make that agreement last for decades and even centuries. This is also partly due to the fact that, contrary to what prof. Brennan seems to think obvious, much law – and certainly constitutional law – presents itself as morally good, and quite deliberately speaks in morally loaded terms. The third, related, reason why argument is so important in constitutional law is that it must somehow reconcile an arguably even greater number of competing values than other areas of the law. Democracy, federalism, Rule of Law, separation of powers, and protection of individual rights pull it in different directions. A constitutional text is, at most, a partial arbitrament between these (and other) competing values; it reflects them all, to some extent, and interpretations favouring one or another are bound to be plausible.

And here is where political ideology, which helps order these values, comes in. Constitutional theory, like any legal theory, is different from scientific theory, because it is in some measure argument. And argument about constitutional theory involves values, and hence ideology. It is fair, I think, to call it intellectually corrupt if it is limited to values and ideology and ignores legal sources. Any scholarship that deserves the name must be in touch with the reality it describes, explains, or critiques, so constitutional theory must, so far as possible, be grounded in constitutional text and precedent. But that will not make it free of ideology.

That said, it should still be possible for a scholar to acknowledge that his or her preferred constitutional interpretation is, if not incorrect by some (nonexistent) purely objective standard, unlikely to be adopted by courts (or other constitutional actors). One should strive to be clear-eyed about such things, and admittedly, legal academics often are not. To that extent, their scholarship suffers from a serious weakness.

An Ancient Parliamentary Right

I learned something about constitutional and Parliamentary tradition yesterday, and decided I’d post about because I was probably not alone in my ignorance of this quirk. Apologies to those in the know already!

***

Each session of the mother of parliaments, at Westminster, and her daughters throughout the Commonwealth, starts with a Speech from the Throne, which sets out the Crown’s – so, by convention, the cabinet’s – agenda for the session. Debate on the government’s agenda as outline in the Speech from the Throne is the first order of legislative business, and the vote on the Address in Reply – the formal response of each House of Parliament to the Speech from the Throne – is a vote of confidence. So far, so familiar.

But, it turns out, not exact. Actually, the first order of business, in the House of Lords and the House of Commons at Westminster, the Senate and the House of Commons of Canada, and the Ontario Legislative Assembly (and perhaps others – I haven’t researched other provinces) is not debating the Speech from the Throne, but the introduction and first reading of a bill that has nothing to do with the Speech from the Throne. In the U.K. House of Commons, it is the Outlawries Bill. In the House of Lords, it’s the Select Vestries Bill. In the Canadian House of Commons, it is Bill C-1, An Act respecting the administration of oaths of office. In the Senate, it is Bill S-1, An Act relating to railways. The British bills seems to have a substantive content relevant to their titles. Canadian ones do not have anything to do with oaths of office, or railways, or anything else. Their only section reads:

1. This bill asserts the right of the House of Commons [or Senate, in S-1] to give precedence to matters not addressed in the Speech from the Throne.

This wording is revealing. It is unusual, indeed strange, for an act of Parliament to “assert,” although this is not altogether unique in Canadian legislation: the National Horse of Canada Act, S.C. 2002 c. 11, “recognize[s] and declare[s].” More importantly, it probably is unique for an Act of Parliament – even for a bill – to refer to itself as a “bill” rather than as an “Act”.

The reason for this unique wording is that these are bills that are not meant to become Acts. The preamble to C-1 explains this tradition:

Whereas the introduction of a pro forma bill in the House of Commons before the consideration of the Speech from the Throne demonstrates the right of the elected representatives of the people to act without the leave of the Crown;

Whereas that custom, which can be traced to 1558 in the Parliament at Westminster, is practised in a number of jurisdictions having a parliamentary form of government;

And whereas it is desirable to explain and record the constitutional relationship represented by that custom …

That of S-1 is similar, though of course it makes no reference to “the elected representatives of the people.” It also does not specify the date on which the custom of the pro forma bills originated.

This is perhaps as well, since there seems to be some confusion on this point. The latest iteration of Ontario’s version of the pro forma bill, more transparently named An Act to Perpetuate an Ancient Parliamentary Right, also refers to 1558. But the earliest version available on the legislative assembly’s website, dating back to 1998, claims that

[t]his practice dates back to the reign of Elizabeth I, when on March 22, 1603, (just two days before her death), Parliament made this assertion of independence from the Crown for the purposes of legislation.

The British bills seem to actually have a traditional substantive wording, related to their titles. But their purpose is exactly the same as that of the Canadian pro forma bills, for which they have served as a model (though as you can see, we have somewhat innovated on it).

***

This is all quite amusing, as are many other constitutional traditions originating in Westminster. But it in a way, it is also rather sad. Pro forma bills are bald assertions of power, not intended to lead to its exercise. Having won its independence from, and then control over, a once-powerful Crown, Parliament has become the servile instrument of the Cabinet. The executive is once again in control of the agenda, and whatever Parliament says at the beginning of each of its sessions, it does not give precedence, or indeed almost any consideration, to matters not put before it by the Cabinet. (Indeed, it is the Prime Minister who tables Bill C-1 in the House of Commons.) Legislative supremacy, or even autonomy, is not much more real now than under the Tudors and the Stuarts.

Constitutional Structure and Economic Outcomes

A few days ago, F.H. Buckley, a professor at the George Mason School of Law (and McGill law graduate and former professor) published in the National Post an op-ed arguing that the Canadian constitutional system, and in particular its lack of separation of powers, serves us rather well by helping maintain a free economy and a fiscally prudent government, especially compared to “America’s second-rate constitutional system.” His colleague, Ilya Somin, has a reply at The Volokh Conspiracy, arguing that those economic outcomes would, on average, be more secure in a “separation of powers system” like that of the United States. I am skeptical of both claims. Continue reading “Constitutional Structure and Economic Outcomes”

A Belated Happy Birthday to the Charter

I wasn’t able to post yesterday, but still want to say something good on the Charter‘s anniversary. My doubts and worries notwithstanding, I believe that the Charter has done Canada a lot of good.

With Lord Acton, I believe that “[l]iberty is not the means to a higher political end. It is itself the highest political end.” And Canada is a freer country today than it would have been had the Charter not been enacted. To be sure, there are aspects of freedom which the Charter does not protect – economic freedom in particular. But in those areas with which it is concerned, it has helped curtail the state’s imposition of its views on citizens, its arbitrariness, its bigotry.  But for the Charter, we might well still have a Lord’s Day Act; we would probably still be extraditing people to face torture or the death penalty; and we would almost surely be convicting and imprisoning people on the basis of arbitrary, brutal, or otherwise disreputable actions of the police or prosecutors.

Pace legislative optimists such as Jeremy Waldron – whom I much admire as an idealist, a scholar, and a teacher – we ought to be realistic in thinking about how best to protect our right and freedoms. In some perfect world, legislatures might do the job. In other, dystopian, worlds, judges will become agents of repression worse than any legislators. But in Canada as we have known it in the last three decades, and as it is likely to be in the decades to come, the Charter and the courts that apply it have been and remain our best hope.

But as we celebrate the Charter, we must recall Pierre Trudeau’s words at its proclamation:

No constitution, no Charter of Rights and Freedoms, no sharing of powers, can be a substitute for the willingness to share the risks and grandeur of sharing the Canadian adventure. Without that collective act of the will our constitution would be a dead letter and our country will wither away. … Let us put our faith first and foremost in the people of Canada who will breathe life  into it.

We owe a debt of gratitude to the courts that have nurtured this breath of life, though not without making serious mistakes along the way; and even more so, to the men and women who have, sometimes at considerable cost to themselves, fought for the recognition of their rights. As the profiles of some of them put together by the Globe show, they have often been perfectly ordinary people; it is a safe bet that without the Charter, none of them would have been able to contribute to the freedom of Canadians in the way they did. In this way, the Charter has lived up to Trudeau’s perhaps paradoxical billing of it as “the people’s package.”

The Charter is good, but more importantly, it is ours. Let’s make it even better.