In recent decades, Canadian courts have increased the strength of First Nations claims, expanded access to abortion, and enhanced the scope of LGBTQ rights. In other words, they’ve made some very important political decisions.For most of Canada’s history, though, courts played a very limited role in political issues. Policy wasn’t within the courts’ purview.However, a deliberate change was made in the 1970s. Canada had a prime minister who wanted the courts to become involved in law reform and law-making. His name was Pierre Trudeau.Trudeau’s repurposing of Canada’s judicial system is explained by Ian Brodie in his 2002 book, Friends of the Court: The Privileging of Interest Group Litigants in Canada. As Brodie writes, “When Pierre Trudeau entered federal politics in the mid-1960s, he intended to give the Canadian courts — including the Supreme Court — a bigger role as policy makers.”In order to accomplish this goal, Trudeau had to make two important changes. First, he began to deliberately appoint judges to the bench who were interested in playing a policy-making role. By the mid-1980s, the Supreme Court was dominated by judges of this kind.Secondly, Trudeau gave the Supreme Court greater control over the cases it heard so that it could devote more time to cases with policy implications.As Brodie notes, “These twin reforms — the appointment of a new generation of judges and giving the Court control over its docket — allowed the Court to shift its attention away from adjudication and toward lawmaking.”.The Supreme Court itself would subsequently loosen the laws of standing (i.e., the legal right to participate in a case). As a result, a larger variety of interest groups were able to intervene in cases involving policy matters. This would become especially important after the Charter of Rights was adopted because it gave left-wing interest groups — often funded by the federal government through the Court Challenges Program — the ability to push “progressive” political agendas to a receptive audience of leftist judges.Needless to say, the Court — staffed by Trudeau’s new appointments — enthusiastically embraced its lawmaking role. “No longer would the Court be restricted to a traditional, English-style adjudicative idea of what judging properly entailed. The Court would put lawmaking in the forefront of its concerns.”The adoption of the Charter of Rights and Freedoms in 1982 turbo-charged the Supreme Court’s new powers. In his original 1968 proposal for the Charter, Trudeau noted that adding it to the constitution would entail transferring some power from elected politicians to unelected judges. That was precisely what he wanted.The changes Trudeau made to Canada’s judicial system in the 1970s began to turn the Court into a lawmaking institution. In addition, the adoption of the Charter changed Canada from a country with a system of Parliamentary supremacy (where major political decisions are largely made by elected officials) to one of judicial supremacy (where many significant political decisions are made by the courts, especially the Supreme Court).As Brodie writes, “in its first decade deciding Charter cases, the Court pursued a much more active course than it had ever pursued before. It rewrote Canadian criminal, administrative, language, and aboriginal law.”The lawmaking role embraced by Canada’s courts did not happen by accident, or even by the initiative of the judges themselves. This was a political decision made at the highest level..As Brodie summarizes, “Trudeau’s objective was to change the judiciary’s role in Canada’s constitutional order, moving it away from strict adherence to the adjudicative ideal of judging. He wanted the courts to pay as much attention to creative lawmaking as to resolving concrete legal disputes.”This was part of Trudeau’s agenda right from the beginning. He “thought more judicial lawmaking would promote the kind of modernizing law reform he needed to make Canada a just society, ‘updating’ Canadian law to take account of new social realities.”Trudeau first introduced his concept of the “just society” during his campaign for the Liberal leadership in 1968. To him, it wasn’t just another empty political slogan. It encapsulated the ideological blueprint he hoped to impose on Canada. The Charter was the pinnacle of the fundamental change he brought to Canada. And changing the judicial system — transferring political decision-making power from elected officials to unelected judges — was central to this program. The United States Supreme Court began to make consequential political decisions in the post-war period — the 1973 Roe v. Wade abortion decision being among the most controversial — and Trudeau wanted Canada’s Supreme Court to play the same role here. The judicial reforms he undertook in the 1970s and the adoption of the Charter in 1982 accomplished this politicization of the courts in spades. For Pierre Trudeau, having the courts engaged in policy-making was a major achievement of his political legacy.
