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Published online by Cambridge University Press: 10 November 2009
The 1982 Charter gives the contemporary Supreme Court enhanced responsibilities in the overall Canadian constitutional system. These novel responsibilities require a jurisprudence appropriate to the new relations between courts and legislatures for which our past has ill-prepared us. In addition to the Charter and the host of citizen-state relations which are thus placed on the Supreme Court agenda, the 1982 Constitution Act, s. 52(1), establishes the supremacy of the constitution, which further underlines the growing significance of the judicial branch in our constitutional future. Are judges to be the midwives of constitutional evolution, seeking to adapt the constitution as an instrument of government to emerging conditions, or are they largely to eschew such a role by employing varying strategies and philosophies of self-control, such as adhering as closely as possible to a more technical task definition, deferring wherever possible to legislatures, resisting the lure of judicial creativity as inappropriate to their appointed status, and throwing the burden of constitutional adaptation on other more overtly political institutions of government?
1 There is, however, an ambiguity in his position which, while generally critical of Judicial Committee performance, contains the odd statement, perhaps only rhetorical: “However reasonable the course taken by the Judicial Committee of the Privy Council now in retrospect appears…” (Vaughan, Frederick, “Critics of the Judicial Committee: The New Orthodoxy and an Alternative Explanation,” this JOURNAL 19 [1986], 495–519, at 519).Google Scholar
2 Vaughan, , “Critics of the Judicial Committee,” 500.Google Scholar
3 Ibid., 506.
4 Ibid., 501–02, 503. In general, I do not accept the label provincialist and I deny that my attitude to the Judicial Committee is a product of a provincial perspective. In the article which I co-authored with Black, Ed (“A Different Perspective on Canadian Federalism,” Canadian Public Administration 9 [1966], 43)CrossRefGoogle Scholar, concern was expressed over several possible negative consequences of province-building. Evidence is not lacking in my other writings of a centralist, nation-building perspective.
5 Vaughan, , “Critics of the Judicial Committee,” 495.Google Scholar For example, I am impressed with and sympathetic to the recent argument of Gordon Bale, which is highly critical of the Judicial Committee decisions in the Manitoba School cases in the 1890s (“Law, Politics and the Manitoba School Question: Supreme Court and Privy Council,” Canadian Bar Review 63 [1985], 462–518).Google Scholar
6 Vaughan, , “Critics of the Judicial Committee,” 495.Google Scholar
7 Ibid., 512.
8 Ibid., 514.
9 Ibid., 519.
10 Russell, Peter H. (ed.), Leading Constitutional Decisions (3rd ed.: Ottawa: Carleton University Press, 1982), 8, 12Google Scholar; Cairns, Alan C., “The Judicial Committee and its Critics,” this JOURNAL 4 (1971), 323.Google Scholar
11 Somewhat paradoxically, at one point Vaughan reverses the sequence and suggests that “why they viewed… [their] function… as essentially political” was because they were “intent on giving effect to a conception of federalism which was clearly counter to that contained in the BNA Act” (Vaughan, , “Critics of the Judicial Committee,” 514Google Scholar; italics added).
12 Cairns, , “The Judicial Committee and its Critics,” 302–12, 332–44.Google Scholar
13 Several small points may be relegated to a footnote. I disagree with Vaughan's assertion that my view of the Fathers or their work “is highly negative” (502). To say that they “lacked the gift of foresight” is not a criticism but a statement of the human condition. I did not say that they were “the victims of a ‘completely static society,’” but that a fundamentalist approach to their creation was only plausible for “a completely static society, in which the original settlement was perfectly suited to existing social values and needs” (Cairns, , “The Judicial Committee and its Critics,” 335Google Scholar) and went on to make the point, that I have not heard denied, that post-confederation Canada was not a static society. I did not dismiss them as “a small body of men in the 1860s,” but simply noted that is what they were. I do not worship the Fathers and their creation in every detail. Who does? I respect them and it.
14 Report Pursuant to Resolution of the Senate to the Honourable the Speaker by the Parliamentary Counsel Relating to the Enactment of the British North America Act, 1867, any lack of consonance between its terms and judicial construction of them and cognate matters (Ottawa, 1939).
15 Vaughan, , “Critics of the Judicial Committee,” 500–01.Google Scholar
16 Ibid., 511–12.
18 Ibid., 500.
19 Ibid., 519.
20 Ibid., 504.
21 Ibid., 510.
22 Ibid., 510–11.
23 Ibid., 511.
24 Silver, A. I., The French-Canadian Idea of Confederation 1864–1900 (Toronto: University of Toronto Press, 1982), 50.Google Scholar
25 There is some tension, if not contradiction, between the argument that on the one hand the confederation plan embodied a “deceptive constitutionalism,” which presumably provided a spurious appearance of federalism, and the thesis stated elsewhere that “The BNA Act is not contradictory… [but]… crudely centralist… [reflecting]… the conscious effort of the framers of the Act” (Vaughan, , “Critics of the Judicial Committee,” 510, 513Google Scholar).
26 See Cairns, , “The Judicial Committee and its Critics.” 323, n. 99Google Scholar for extensive references and quotations.
27 Ibid., 319–20.
28 Ibid., 322.
29 Evans, Peter B., Rueschemeyer, Dietrich and Skocpol, Theda (eds.). Bringing the State Back In (Cambridge: Cambridge University Press, 1985).CrossRefGoogle Scholar
30 Vaughan, , “Critics of the Judicial Committee,” 505.Google Scholar It is difficult to come to grips with Vaughan's position without a more elaborate understanding of what he means by “the continued existence of Canada as one nation.”
31 Cairns, , “The Judicial Committee and its Critics,” 334–38.Google Scholar
32 Gray, Evan, “‘The O'Connor Report‘ on the British North America Act, 1867,” Canadian Bar Review 17 (1939), 334Google Scholar, cited in Cairns, , “The Judicial Committee and its Critics,” 337, n. 148.Google Scholar
33 Llewellyn, K. N., “The Constitution as an Institution,” Columbia Law Review 23 (1934), 33Google Scholar, cited in Cairns, , “The Judicial Committee and its Critics,” 335, n. 140.Google Scholar
34 Vaughan, , “Critics of the Judicial Committee,” 502.Google Scholar
35 Cairns, , “The Judicial Committee and its Critics,” 342–43.Google Scholar
36 For one example, see “An Address by the Right Honourable Brian Dickson, Closing Banquet, University of Ottawa Conference on the Supreme Court of Canada,” October 4, 1985 (mimeo). See also the very impressive Goodman, David B. Memorial Lectures delivered by Madame Justice Bertha Wilson at the University of Toronto, November 26–27, 1985Google Scholar (mimeo), which subtly discusses four “tensions” in judicial decision-making, and in the second lecture explicitly addresses the judicial role with respect to the Charter.
37 Russell, , Leading Constitutional Decisions, 17.Google Scholar
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