the time this article was written Philip Kaye was a Research Officer in the
Legislative Research Service of the Ontario Legislative Library. This paper was
originally prepared for delegates to the 37th Canadian Regional Conference of CPA held in Toronto in July
early 1998 the Supreme Court of Canada in Vriend v. Alberta referred to the
continuing “debate” over the legitimacy of the courts invalidating
legislation. This paper looks at two opposing views on this issue. One
side argues that the courts have a key responsibility to protect the
rights of Canadians within a system of constitutional supremacy. The
other side argues that the courts have inappropriately come to act as
legislators. Among other things the paper looks at the role of the courts as
protectors of “democratic values”; the approach the courts should take in the
case of omissions from legislation; and the general nature of the relationship
between courts—especially the Supreme Court of Canada—and legislatures under
the Charter of Rights. Is it appropriate, for instance, to characterize
that relationship as a “dialogue”?
The Canadian Charter of
Rights and Freedoms (section 1) guarantees the rights and freedoms set out
in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.
This section contemplates a
two-stage process for the judicial review of legislation under the Charter.
In the first stage, the court must determine whether the challenged law
infringes a guaranteed right or freedom. If the court finds that no such
infringement has occurred, the inquiry under the Charter ends; however,
if a right or freedom has been violated, the court proceeds to the next stage.
In this next stage, s. 1 of the Charter
is invoked. The court must decide whether the violation is a reasonable
one that can be demonstrably justified in a free and democratic society.
If the test of justifiability (explained below) is met, the law will be
saved. Otherwise, the court may choose, as one remedy, to strike down the
provisions in question.1
The Supreme Court has laid down
four criteria to be applied during the second stage—that is, for determining
whether an infringement of the Charter can be justified in a free and
democratic society.2 These
criteria, especially the fourth one, have been expressed by the Supreme Court
in very general language. They first took shape in 1986 and may be categorized
in the following way:
Objectives: The challenged law must pursue an
objective that is sufficiently important to warrant overriding a Charter
right. At a minimum, the objective must relate to concerns which are
“pressing and substantial” in a free and democratic society;
Proportionality: If a sufficiently significant
objective has been recognized, the following so-called “proportionality test”,
containing the second, third, and fourth criteria, must be satisfied:
Rational Connection. The law must be rationally
connected to the pressing and substantial objective—in other words, it must be
carefully designed to achieve it. Under this criterion, the law cannot be
arbitrary, unfair, or based on irrational considerations;
Minimal Impairment. The law should impair “as little as
possible” the right or freedom in question. The idea is that the least drastic
means should be used to pursue the legislative objective; and
Proportionate Effect. There must be proportionality
both between the objective and the “deleterious effects” of the statutory
restrictions in question, and between the “deleterious” and “salutary effects”
of those restrictions. This requirement necessitates a balancing of the
objective sought by the law against the infringement of the civil liberty.
It asks whether the contravention of the Charter is too high a
price to pay for the benefit of the law.
Professor Peter Hogg has written
that nearly all s. 1 cases have centred upon the third criterion above: is the Charter
right impaired no more than is necessary to accomplish the legislative
As mentioned earlier, upon
finding a violation of the Charter which is not upheld by s. 1, the
court may strike down the offending legislation. The declaration of
invalidity might take effect immediately or it might be suspended to give the
Legislature an opportunity to bring the impugned provisions into line with the Charter.3
One of the other remedies
invoked by the courts has been described as “reading in”. The power to “read
in” is a relatively recent remedy, having been enunciated for the first time by
the Supreme Court of Canada in 1992 in Schachter v. Canada,4 which was a case involving parental
benefits under the Unemployment Insurance Act. The Supreme Court
derived this remedy from s. 52 of the Constitution Act, 1982, which
states that any law which is inconsistent with the Constitution of Canada is,
to the extent of the inconsistency, of no force or effect. In the case of
reading in, the constitutional inconsistency is defined as what the legislation
wrongly excludes, rather than what it wrongly includes. Reading in has
the effect of extending the ambit of legislation by including the excluded
group within the legislative scheme.
In Schachter, Chief
Justice Lamer said that reading in would be appropriate only in “the clearest
of cases”. The purpose of using it was “to be as faithful as possible
within the requirements of the Constitution to the scheme enacted by the
Vriend v. Alberta was a case where the courts explicitly
addressed the issue of the Court-Legislature relationship under the Charter.
In this case, the Supreme Court of Canada ruled that Alberta’s
Individual Rights Protection Act5 violated
the guarantee of equality rights in s. 15(1) of the Charter by failing
to include sexual orientation as a prohibited ground of discrimination.
The Court then determined that the violation was not demonstrably
justified as a reasonable limit pursuant to s. 1 of the Charter.
All of the Justices, apart from Justice Major, concluded that reading
sexual orientation into the Alberta Act was the appropriate remedy.
Justice Major favoured a declaration of invalidity, but suspending its
application for one year.
The Courts as Interpreters of
The majority judgment in Vriend
stressed the limits placed upon legislatures by the Constitution. Justice
Iacobucci argued that upon the introduction of the Charter Canada went
from a system of Parliamentary supremacy to constitutional supremacy.
Simply put, the Charter meant that each Canadian now had
rights and freedoms which governments and legislatures could not take away.
However, since rights and freedoms were not absolute, governments and
legislatures could justify qualifications and infringements of them under s. 1.
Justice Iacobucci continued that disputes would inevitably arise
over the meaning of these rights and their justification; it was the role of the
judiciary to resolve them.6
In a similar vein, Justice Cory
Quite simply, it is not the
courts which limit the legislatures. Rather, it is the Constitution, which
must be interpreted by the courts, that limits the legislatures.7
In Vriend, Justice
Iacobucci wrote that when adopting the Charter, the provincial and
federal legislatures deliberately chose to assign an interpretive role to the
courts, and to command them to declare unconstitutional legislation invalid.
The introduction of the Charter, combined with this “remedial
role” of the court, were part of a redefinition of our democracy; they
represented choices of the Canadian people through their elected
Similar views were expressed by
Chief Justice Lamer last year at the time of the 15th anniversary of
the Charter. He described the above-mentioned s. 52 of the Constitution
Act, 1982, which renders invalid those laws which are inconsistent with the
Constitution, as a “command from the elected. We’re heeding the command
of the elected.” He added:
It is, I agree, a system under
which very fundamental issues of great importance to the kind of society we
want are being made by unelected persons, but that’s their doing, that’s not
ours. The only answer would be, ‘Well, the elected didn’t really know
what the hell they were doing.’9
In Vriend Justice
Iacobucci referred to the role of the courts to protect “democratic values”.
He remarked that although the invalidation of legislation by the courts
usually involved negating the will of the majority, the concept of democracy
was broader than the notion of majority rule.10
As stated in another case, courts had to be guided by the values and
principles essential to a free and democratic society (e.g. respect for the
inherent dignity of the human person).11
They had to stand ready to intervene to protect democratic values as
These views of democracy
required legislators to take into account the interests of majorities and minorities
alike. Where the interests of a minority were denied consideration,
especially where that group had historically been the target of prejudice and
discrimination, judicial intervention was warranted “to correct a democratic
process that has acted improperly.”12
Justice Cory acknowledged that
critics have argued that the courts must defer to a decision of a legislature
not to enact a particular provision and that such decisions should be excluded
from the scope of Charter review. He responded that under the Charter
the deference which was “very properly due” to legislative choices would be
taken into account in deciding whether a limit was justified under s. 1.
Furthermore, that deference to the legislature would be a factor in determining
the appropriate remedy for a Charter breach. He also felt that the
exclusion of omissions from Charter scrutiny would produce unfair
results. He explained:
If an omission were not subject
to the Charter, underinclusive legislation which was worded in such a
way as to simply omit one class rather than to explicitly exclude it would be
immune from Charter challenge. If this position was accepted, the
form, rather than the substance, of the legislation would determine whether it
was open to challenge. This result would be illogical and more
Legislative omissions were the
subject of comment by Justice Iacobucci as well. He felt that by
definition Charter scrutiny, whether it involved such omissions or not,
would always entail some interference with the legislative will. Whether
a court chose to read provisions into legislation or to strike it down,
legislative intent was necessarily interfered with to some degree.
Consequently, the closest a court could come to respecting legislative
intention was to determine what the legislature would likely have done if it
had known that its chosen measures would be ruled unconstitutional.
Professor Allan Hutchinson of
Osgoode Hall Law School has argued that under the Charter, the Supreme
Court of Canada cannot but act politically; its only choice is to decide how it
is going to do so. Whether it upholds legislation, strikes it down, or
reads in provisions, the Court is engaging in equally political conduct in that
it is imposing its own solution over that of a legislature’s initial response.
But whatever remedial option is taken, a legislature still has the option
of utilizing the notwithstanding clause (outlined below) and to redraft the
legislation in question.14
The notion of a Charter
dialogue between courts and legislatures is raised in an article by Professor
Peter Hogg and Allison Bushell who surveyed 65 cases where legislation was
invalidated for a breach of the Charter, including all of the decisions
of the Supreme Court of Canada in which a law was struck down on this basis.15 They found that
52 (80 percent) of the decisions generated a legislative response,
whether it be the amendment, repeal, or overriding of the impugned law. They
consider this situation as representing a “dialogue”, defined as follows:
Where a judicial decision is
open to legislative reversal, modification, or avoidance, then it is meaningful
to regard the relationship between the Court and the competent legislative body
as a dialogue.16
Hogg and Bushell ask, in effect,
the following question: why is it usually possible for a legislature to respond
to (or overcome if it wishes) a court decision striking down a law as contrary
to the Charter? Their answer cites four features of the Charter:
The notwithstanding clause
The override power found in s.
33 of the Charter is the most obvious and direct way of overcoming a
judicial decision striking down a law for the breach of certain Charter
rights. S. 33 permits a legislature to re-enact the original law without
interference from the courts. Accordingly, it has been characterized by
Justice Strayer of the Federal Court of Appeal as the “ultimate protection of
legislative supremacy.” S. 33 also avoids the need for constitutional
amendments to overcome a judgment—a function highlighted by Prime Minister Chrétien
in 1981 when he served as federal Minister of Justice.
Section 1 of the Charter:
As mentioned earlier, when
a law is struck down for violating the Charter, it almost always means
that the law did not pursue its objective through the least restrictive means
available. As pointed out by Hogg and Bushell, when a court strikes down
a law for this reason under s. 1, it will explain the less restrictive
alternative law that would have satisfied the requirements of s. 1. “That
alternative law is available to the enacting body and will generally be
Qualified Charter rights:
Several of the guaranteed
rights under the Charter are expressed in qualified terms (for example,
s. 9 guarantees the right not to be “arbitrarily” detained or imprisoned).
Hogg and Bushell say that even if s.1 has no application to these
qualified rights, the nature of the qualifications allows for possible
corrective action by a legislature when a law has been struck down for breaching
one of these rights. For instance, s. 8 prohibits only “unreasonable”
search and seizure. A court decision that a law authorizing a search and
seizure is unreasonable can always be met by a new law that complies with the
court’s standards of reasonableness;18
Typically, where a law is found
to violate the guarantee of equality rights in s. 15(1) of the Charter,
the problem lies in the law’s underinclusiveness; persons have a constitutional
right to be included in the legislative scheme, but are excluded. Hogg
and Bushell write that in this situation, there are a number of ways a
legislature can satisfy s. 15(1) and still set its own priorities. The
most obvious solution is the extension of the benefit of the underinclusive law
to the excluded group. Another option is to provide reduced benefits to
all the persons who have a constitutional right to be included.
Courts as Legislators
A very different perspective of
the existing relationship between courts and legislatures sees the courts as a
legislative body, and is held for example by Professor Rob Martin of the
University of Western Ontario. Martin defines the real issue in Vriend,
as soon as it went to court, as not whether human rights legislation should
prohibit discrimination on the basis of sexual orientation (a prohibition which
he favours), but rather who should make that decision. Should authority
to do so rest with the courts or legislatures?19
Martin describes as “patent
nonsense” the notion that it is the Constitution, not the courts, which limits
legislatures. He agrees that judges are enjoined to interpret the
Constitution; however, “what the Constitution does not do is tell the judges
how to interpret the Constitution.” He contends that the way the judges
of the Supreme Court currently interpret the Constitution “was devised entirely
Martin believes the Supreme
Court “invented” the remedy of reading in six years ago so as to enable it to
rewrite statutes. As well, he feels that the Court has decided that it
can rewrite the Constitution itself. In this regard, he refers to Re
Provincial Court Judges21 a
case arising from pay disputes between provincial court judges and various
provincial governments. The majority judgment in that case (delivered by
Chief Justice Lamer in September 1997) stated that the courts could fill in
“gaps” in the Constitution as follows:
The preamble [to the Constitution
Act, 1867] identifies the organizing principles [of the Act] . . . and
invites the courts to turn those principles into the premises of a
constitutional argument that culminates in the filling of gaps in the express
terms of the constitutional text.22
In Re Provincial Court Judges
the Chief Justice held that financial security was a core characteristic of
judicial independence and that it had to satisfy certain constitutional
requirements. Martin feels that in listing these requirements, the Chief
Justice “legislated for several pages.”23
The alleged lawmaking included the following comments by the Chief
Justice respecting judicial compensation commissions:
...as a general constitutional
principle, the salaries of provincial court judges can be reduced, increased,
or frozen....However, any changes to or freezes in judicial remuneration require
prior recourse to a special process, which is independent, effective, and
objective, for determining judicial remuneration to avoid the possibility of,
or the appearance of, political interference through economic manipulation.
What judicial independence requires is an independent body [often
referred to as commissions]. ...Governments are constitutionally bound to go
through the commission process. The recommendations of the commission
would not be binding on the executive or the legislature. Nevertheless,
though those recommendations are non-binding, they should not be set aside
lightly, and, if the executive or the legislature chooses to depart from them,
it has to justify its decision — if need be, in a court of law....24
Martin does not agree that the
adoption of the Charter was an act of the elected representatives of the
people at the federal and provincial levels. He observes that the Charter
was enacted by the Parliament of the United Kingdom following the passage of a
constitutional resolution by the House of Commons and Senate, and that “the
provincial legislatures had no part in the process.” (Technically, the
federal-provincial agreement of November 1981, which was signed by nine Premiers
and which led to the adoption of the Charter of Rights, was voted upon
by two Legislatures. It was approved by the Alberta Legislature in
November 1981 and disapproved by the Quebec National Assembly the
Martin interprets the Supreme
Court’s remarks on democracy and “democratic values” in Vriend as in
effect saying that “democracy is acceptable as long as the people make the
right decisions”; otherwise the courts will step in and quash those decisions.
In his opinion the Supreme Court
fails to grasp that in a democracy “the people will not always get the answers
right.” This problem with democracy is one reason periodic elections are
held—to allow the people to correct mistakes. But he adds:
. . . our Constitution does not
grant law-making authority to the people’s representatives on condition that
they make only ‘good’ laws.25
The application of the Charter
to legislative omissions was the subject of extensive comment by Justice
McClung, who was one of the two majority judges in the Alberta Court of Appeal
decision in Vriend. Unlike the Supreme Court of Canada, the Court
of Appeal ruled that the omission of the words “sexual orientation” in
Alberta’s Individual’s Rights Protection Act did not violate the Charter
Justice McClung opposed the use
of the remedy of “reading in”. Although a statute which was clearly bad
had to be judicially condemned, the preferred approach was to return it to the legislature
in question for “representative, constitutional overhaul”.27 Accordingly, judges should
not choose “to privateer in parliamentary sea lanes.”28
He stressed that provincial
legislatures had to be allowed the latitude to exercise their lawmaking powers
under the Constitution Act, 1867. In the case of omissions, they
were accountable to the electorate. He explained:
When they choose silence
provincial legislatures need not march to the Charter drum. In a
constitutional sense they need not march at all. That is hardly to say that the
governments of the day will not have to answer later to the voters for such a
stance. That is as it should be.29
Applying these principles to his
own province, the Order Paper of the Alberta Legislature was “not to be
dictated . . . by federally appointed judges brandishing the Charter;”
rather, the province’s legislative calendar had to be set by the
representatives of the electorate.
Dialogue between Courts and
Some critics question if there
really is a “dialogue” between courts and legislatures. Jeffrey Simpson
of the Globe and Mail, for instance, characterizes this dialogue as a
one-way conversation in which the courts talk and legislatures listen. It
is his view that although the courts can tell legislatures they are wrong,
governments are reluctant to do the same to the courts. The
notwithstanding clause is available, but “governments have been loath to use it
in part because judges enjoy much higher standing in society than politicians.”30
Even leading proponents of the
dialogue concept acknowledge that in some circumstances the courts may, by
necessity, have the final word. For example, some of the rights protected under
the Charter are expressed so specifically that there may be no room for
Parliament or a provincial legislature to impose “reasonable limits” on them.
This was the position which in fact was taken by the Supreme Court of
Canada in respect of minority language education rights in its very first Charter
Peter W. Hogg, Constitutional Law of Canada, loose-leaf ed.
(Toronto: Carswell, 1997), vol. 2, sections 35.1 and 37.1; and Bernard W.
Funston and Eugene Meehan, Canada’s Constitutional Law in a Nutshell (Toronto:
Carswell, 1994), p. 159.
2. The criteria are discussed in
Hogg, vol. 2, sections 35.8-35.12, and were first presented in R. v. Oakes,
 1 S.C.R. 103. Clarifications have been made–most recently in Vriend
v. Alberta,  1 S.C.R. 493.”
3. See the discussion of
remedies in Hogg, vol. 2, section 37.1.
4.  2 S.C.R. 679.
5. R.S.A. 1980, c. I-2.
This Act is now known as the Human Rights, Citizenship and
Multiculturalism Act, R.S.A. 1980, c. H-11.7.
6. Vriend v. Alberta,
7. Ibid., para. 56.
8. Ibid., paras. 132 and
9. See Stephen Bindman, “ ‘Thank
God for the charter’: Top judge staunchly defends Charter of Rights on its 15th
anniversary,” Ottawa Citizen, 17 April 1997, p. A1.
10. Vriend v. Alberta,
11. Justice Iacobucci here
quoted Dickson C.J. in R. v. Oakes,  1 S.C.R. 103 at 136.
12. Vriend v. Alberta,
13. Ibid., para. 61.
14. Allan Hutchinson, “What
Supreme Court said, and didn’t say, on gay rights”, Toronto Star,
20 April 1998, p. A15.
15. Peter W. Hogg and Allison A.
Bushell, “The Charter Dialogue between Courts and Legislatures (Or Perhaps the
Charter of Rights Isn’t Such A Bad Thing After All)”, Osgoode Hall Law
Journal, 35:1 (Spring 1997): 75-124.
16. Ibid., p. 79.
17. Ibid., p. 85.
18. Ibid., p. 88.
19. Rob Martin, “Martin’s
Creed[:] The Charter made them do it?”, Law Times, June 1-7, 1998,
21.  3 S.C.R. 3.
22. Ibid., para. 105.
23. Martin, p. 8; see also Rob
Martin, “Martin’s Creed[:] Subversion in the Supreme Court?”, Law Times,
November 3-9, 1997.
24. Re Provincial Court
Judges, para. 133.
25. Martin, “The Charter made
them do it?”, p. 8.
26.  132 D.L.R. (4th) 595.
27. Ibid., p. 619.
29. Ibid,. p. 605.
30. Jeffrey Simpson, “Is Supreme
Court bound to interpret Charter and laws as passed?”, Globe and Mail, 8
April 1998, p. A14.
31. Hogg and Bushell, p. 92.
That case before the Supreme Court–A.G. Que. v. Que. Protestant School Bds.,
 2 S.C.R. 66–concerned provisions in Quebec’s language legislation, which
limited attendance at English-language schools to those children whose parents
had been educated in the English language in Quebec. S. 23(1)(b) of the
Charter, however, explicitly states otherwise. In particular, parents who
are Canadian citizens and Quebec residents, and who have received their primary
education in English in any part of Canada, are entitled to have their children
educated in the English language in Quebec. In striking down the law, the
Court said that since it was in direct contradiction of the terms of the
Charter, there was no possibility of justifying the law under s. 1. In this
case, it was not possible for the Quebec National Assembly to invoke the
notwithstanding clause to override the Court’s decision. The challenged
law involved minority language educational rights and such rights cannot be
overridden. (The notwithstanding clause can be invoked only with respect
to the fundamental freedoms, legal rights, and equality rights.)