WAGNER: The Ontario Chief Justice who warned against Pierre Trudeau’s Charter

Early in 1968, Justice Minister Pierre Trudeau released a government White Paper he wrote entitled A Canadian Charter of Human Rights. It was his initial proposal for what would become the Canadian Charter of Rights and Freedoms in 1982.At the outset, Trudeau’s proposal was not universally welcomed. Many scholars and political leaders recognized it to be a radical alternative to Canada’s existing system of individual rights protection. But because of the widespread fawning over the Charter of Rights today, many Canadians do not know about the significant opposition it received when it was first proposed.One of the early outspoken opponents of Trudeau’s Charter was James C. McRuer, Chief Justice of the High Court of Justice of Ontario. At the time Trudeau’s proposal was released, McRuer was serving as the head of the Ontario Royal Commission Inquiry into Civil Rights, a position he was appointed to in 1964. The commission — the purpose of which was to recommend changes to strengthen protection for individual rights — would release its report in five volumes over a period of three years.Part four of the report was issued in 1969, and in this volume McRuer took direct aim at the Charter proposal. As political scientist Donald Smiley wrote at the time, McRuer demolished “the superficial case for the constitutional entrenchment of rights made by Mr. Trudeau.”Unfortunately, McRuer’s debunking of Trudeau did not generate enough opposition to prevent adoption of the Charter.Trudeau’s key argument in favour of the Charter was that Canadians’ individual rights were not guaranteed because they were not entrenched in the constitution. Our rights, he alleged, were vulnerable until they were enumerated in the constitution through his Charter. .Because Trudeau was ultimately successful in achieving his goal, many Canadians today seem to think he gave us our rights, as if we didn’t have individual rights before his Charter. That view is complete nonsense.The fact is, Trudeau did not like Canada’s method of protecting individual rights, which relied on historical practices inherited from Britain. Citizens were recognized as holding rights which included freedom of speech and freedom of religion, although these rights were not spelled out in a constitutional document. Nevertheless, Canadians enjoyed individual rights as good or better than any country in the world at that time.Trudeau much preferred the American system of enumerated rights. He wanted Canada to entrench a document in the constitution with an explicit list of protected rights. Sounds good, right? Who wouldn’t want their rights defined in the constitution? Answer: Chief Justice McRuer and many others who understood Canada’s historic system.In the American system, the US Supreme Court becomes the final arbiter of the meaning of rights in the Constitution. What’s wrong with that? As McRuer wrote, “This means that, with the very rare exception of a constitutional amendment, the Supreme Court has everyday final power over the democratic legislative bodies of the country. The result is that not infrequently the Court has denied the respective legislative bodies the right to pass laws which they have considered to be necessary to advance the social well-being of the people.”In other words, the country is ultimately ruled by Supreme Court judges. As McRuer explained, “no legislative body representative of the people has any power to reverse or alter the law as declared by the Court.”This is precisely the kind of system Pierre Trudeau wanted for Canada. But McRuer smelled a rat. Trudeau’s proposal, he wrote, amounted to “a proposal that we should adopt the sweeping degree of judicial supremacy that obtains in the United States.”.McRuer rejected it outright: “We cannot agree with a philosophy of government that deprives the people of the ultimate right to determine their own social affairs through democratic processes and transfers the final power of decision in certain wide areas to appointed officials — the judges.”He went on to summarize the issue this way: “Is the American system of judicial supremacy, at the primary level of social policy decisions and law-making, preferable to the principle that has dominated in Canada and the Provinces until now, namely that parliamentary supremacy and not judicial supremacy prevails at the primary level of social policy decisions and law-making?”In other words, is policy-making by unelected judges a better system than policy-making by elected officials who are directly accountable to voters? Trudeau favoured the former and McRuer the latter.Unfortunately, Trudeau prevailed in 1982, and since then, judges — especially at the Supreme Court level — have become the highest political authorities in the land, at least on several controversial issues. But we had been warned. Chief Justice McRuer, writing in 1969, told Canadians what would happen if Trudeau got his Charter. His distant early warning was ignored. So today we have rights entrenched in the Charter, and the limits of those rights — as well as many contentious policy issues — are solely determined by nine Ottawa judges who are unaccountable to Canadian voters. Over the last few decades, they have consistently pushed policies in a leftward direction, and there’s little Canadians can do about it. The only consolation is the much-maligned Notwithstanding Clause, i.e., Section 33 of the Charter, which provides a limited avenue for democratic responses to judicial overreach. Despite the best efforts of Chief Justice McRuer, Pierre Trudeau succeeded in transferring considerable political power from voters to a tiny judicial aristocracy.

WAGNER: The Ontario Chief Justice who warned against Pierre Trudeau’s Charter

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