{"id":2117,"date":"2017-01-13T21:03:35","date_gmt":"2017-01-13T21:03:35","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=2117"},"modified":"2018-08-31T18:47:30","modified_gmt":"2018-08-31T18:47:30","slug":"the-charter-and-canadas-new-political-culture-are-we-all-ambassadors-now","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/the-charter-and-canadas-new-political-culture-are-we-all-ambassadors-now\/","title":{"rendered":"The Charter and Canada\u2019s New Political Culture: Are We All Ambassadors Now?"},"content":{"rendered":"

On January 6, 2017, The Honourable Glenn D. Joyal, Chief Justice of the Court of Queen’s Bench of Manitoba, gave the keynote address at the Canadian Constitution Foundation’s Law and Freedom Conference. The title of this stimulating and eloquent address was “The Charter<\/em> and Canada\u2019s New Political Culture:\u00a0 Are We All Ambassadors Now?” Chief Justice Joyal discussed the roots of Canada’s political culture, the compromise that lay at the heart of the\u00a0Charter<\/em>‘s\u00a0<\/em>enactment in 1982, and the changes to this nation’s political culture since that time.\u00a0<\/em>Chief Justice Joyal advocated, among other things, that judges should approach constitutional cases with the “principled restraint, consistency and predictability that can and should come from identifiable constitutional and legal doctrine.”<\/p>\n

Below is the full text of Chief Justice Joyal’s keynote address, reproduced with the Chief Justice’s permission.<\/p>\n

Tonight, ladies and gentlemen, I feel very much like the shy and timid church organist who, on a rare Friday night, gets to sneak out to a local smoky bar and play electric piano with a group of exciting but somewhat subversive jazz musicians.<\/strong><\/p>\n

I say that in part because my talk this evening will not address many of the more mundane administrative or operational subjects about which a Chief Justice typically speaks out.\u00a0 Instead, my topic this evening is a topic of a more foundational nature, touching important aspects of public law.<\/strong><\/p>\n

I have entitled my talk:\u00a0 \u201cThe Charter<\/em> AND Canada\u2019s New Political Culture:\u00a0 Are We All Ambassadors Now?\u201d<\/strong><\/p>\n

As the title might suggest, tonight, I want to talk to you about Canada\u2019s current political culture, the Charter<\/em>and<\/u> the somewhat uneasy and uneven institutional relationship that exists as between the judiciary and the legislative branch.<\/strong><\/p>\n

It is my position that the new Canadian political culture has been in part, both caused by and now, very much reflects, what has been over the last 35 years, an increasing judicial dominance in that judicial\/legislative institutional relationship.<\/strong><\/p>\n

The subtextual and sometimes explicit question that I want to raise this evening, is whether the state of that<\/u> relationship should be so reflexively applauded and, in different ways, promoted.<\/strong><\/p>\n

Regrettably, my position this evening will be advanced with all of the superficiality and conclusory reasoning that the limits of time require and that judges generally abhor.\u00a0 Nonetheless, I should feel more than satisfied if my remarks provide any of you, some source or reference for future reflection.<\/strong><\/p>\n

So let\u2019s start with some context.<\/strong><\/p>\n

Many many years ago, in my misspent youth, I completed a Master\u2019s Thesis entitled \u201cTraditional Canadian Political Culture Adrift in the Era of the Charter\u201d.\u00a0 \u201cAdrift\u201d as in floating somewhat aimlessly and with uncertainty.\u00a0 That thesis was written in the comparatively early days of the Canadian Charter of Rights and Freedoms<\/em>.\u00a0 Fast forward to the present day.<\/strong><\/p>\n

In 2017 and in the current era of the Charter<\/em>, Canadian political culture is no longer adrift. Canadian political culture, in my humble view ladies and gentlemen, has now fundamentally changed.<\/strong><\/p>\n

For those who are concerned about maintaining an institutional balance as between a strong and robust judiciary and an equally purposeful and respected legislative branch, this fundamental change in the Canadian political culture is not without consequence.<\/strong><\/p>\n

This evening, I hope to explain why.<\/strong><\/p>\n

Political culture is an extraordinarily useful and relevant concept, especially for keen students, like yourselves, who are interested in the evolution of the Canadian Constitution and constitutional history generally.<\/strong><\/p>\n

What is political culture?\u00a0 Broadly defined, a political culture reflects the attitudes and beliefs that citizens and its specific institutional actors hold about the political system.\u00a0 Political culture can also be seen as the conglomeration of ideas and attitudes which set the parameters in which debate over policy justifications take place.\u00a0 A political culture is in part revealed and transmitted through a polity\u2019s public discourse. \u00a0In this context, language can both encode and shape attitudes, outlooks and assumptions about politics and institutions.<\/strong><\/p>\n

Strong hints about a political culture can also be revealed through legislation.\u00a0 National or local laws will frequently reflect a polity\u2019s values and beliefs and will in the process, depending upon the manner in which the legislative \u201csolution\u201d is formulated and defined, highlight, emphasize and reinforce a society\u2019s prioritization of values, attitudes and beliefs.<\/strong><\/p>\n

Political culture shapes the perception of politically relevant problems and further affects what people perceive are the appropriate areas of governmental and institutional action.<\/strong><\/p>\n

Tonight, I will suggest that Canada\u2019s new political culture is largely dominated by attitudes and beliefs now held by a broad cross-section of the Canadian citizenry and its institutional actors, which attitudes and beliefs suggest an almost unconditional willingness to accept or endorse the idea of judicial adjudications in respect of what are often complex and even insoluble social and political problems.\u00a0 What were once political issues are now frequently transformed into legal issues.<\/strong><\/p>\n

This transformation of political issues into legal issues, often on the basis of new rights, has led to a new institutional dynamic as between the judiciary and the legislative branch.<\/strong><\/p>\n

Given the principle of constitutional supremacy, it is now an institutional relationship in which the legislative branch frequently occupies a diminished and even inferior role.\u00a0 It is in the discussions surrounding this new institutional relationship and dynamic, that incendiary questions are sometimes raised about the judicialization of politics and the politicization of the judiciary.<\/strong><\/p>\n

While this new reality may be both a cause and now, a reflection of Canada\u2019s new political culture, it is for many who study Canadian history, an unanticipated development that was not envisioned nor necessarily desired by the 1982 compromise that led to the adoption of the Charter<\/em>.<\/strong><\/p>\n

Indeed, as I will explain, the 1982 compromise was, in part, a response to those who raised institutional concerns about an enhanced policy-making role for the judiciary under the Charter<\/em>.\u00a0 Many like the Canadian constitutional scholar, Peter Russell, feared that an enhanced judicial policy-making role would precipitate \u201ca flight from politics\u201d.\u00a0\u00a0 A \u201cflight from politics\u201d that Russell said would cause \u201ca deepening disillusionment with the procedures of representative government, and government by discussion as a means of resolving fundamental questions of political justice\u201d.<\/strong><\/p>\n

You\u2019ll hear more about the \u201cflight from politics\u201d later.<\/strong><\/p>\n

I set out a few minutes ago, the quixotic title of this evening\u2019s talk, \u201cThe Charter<\/em> in Canada\u2019s New Political Culture:\u00a0 Are We All Ambassadors Now?\u201d The somewhat incongruous reference to the ambassadorial role comes from a speech recently given at the University of British Columbia by Canada\u2019s Attorney General and Minister of Justice, The Honourable Jody Wilson-Raybould.\u00a0 In a very genuine and earnest reference, Minister Wilson-Raybould explained to the students, that she saw herself as being \u201cthe ambassador for the Charter<\/em>\u201d.<\/strong><\/p>\n

It should be noted that the definition of the ambassadorial task includes the acts of \u201cpromoting\u201d, \u201cchampioning\u201d and \u201cprotecting\u201d. With her reference to the ambassadorial role, the Minister was perhaps spontaneously demonstrating through her rhetorical enthusiasm, the very institutional and attitudinal changes that so reflect the new political culture.<\/strong><\/p>\n

The Minister is hardly alone in her celebration of the Charter<\/em>.\u00a0 To the contrary, most institutional actors in the Canadian polity seem similarly unconditional in their willingness to play a role championing and promoting the Charter<\/em>.<\/strong><\/p>\n

Whether one speaks of the legal profession, the legal academy, the opposition parties of the day, the citizenry, the media and, of course, the judiciary, the spirit of \u201cCharter<\/em> values\u201d has been enthusiastically adopted and endorsed.\u00a0 In other words, \u201cCharter<\/em> values\u201d \u2013 whatever that means \u2013 is now not only an interpretative term of art emanating from Supreme Court of Canada jurisprudence, it also now serves as a somewhat self-congratulatory reference point for defining the Canadian identity.<\/strong><\/p>\n

An enthusiasm for the Charter<\/em> or, as Professor Alan Cairns called it, a \u201cCharter<\/em> patriotism\u201d, is on one level, certainly understandable. The Charter<\/em> is in many ways a unique and potentially nuanced constitutional instrument that in 1982, grew out of what Edmund Burke might have identified as the particular harmony and hidden wisdom of a nation\u2019s social and political history.\u00a0 There is much to admire in a document which provides important protections in relation to areas of criminal justice, minority rights, group rights, equality, and the lines demarcating the public and private sphere, more generally.\u00a0 Indeed, there is much to admire about how the judiciary has generally applied and enforced those rights.<\/strong><\/p>\n

Put simply, as a foundational part of Canada\u2019s constitutional architecture, the Charter<\/em> deserves our respect and demands our compliance.<\/strong><\/p>\n

Yet, to the extent that we, as Canadian citizens and we as institutional actors, rarely raise questions about the resulting new and imbalanced relationship between the judiciary and the legislative branch, and to the extent that we rarely raise connected questions about the broader implications for the Canadian polity, we risk a consequential intellectual complacency.<\/strong><\/p>\n

In a political culture without such foundational questions being raised, it is not unreasonable to ask whether we are not all ambassadors now, through complacency or by default.<\/strong><\/p>\n

Tonight, in the face of so many domestic Canadian ambassadors, I ask the question whether in Canada\u2019s new political culture, there remains any intellectual space in which genuine concerns can be raised and debated about a potential institutional imbalance that has, and will continue to have, implications for the Canadian polity.<\/strong><\/p>\n

For the rest of my talk, I want to deal with the question I have raised by breaking it down and addressing two points:<\/strong><\/p>\n