The Judicial Process and National Policy –
A Problem for Canadian Federalism
Maxwell Cohen*
I. Introduction
The present constitutional review in Canada already appears to
accept consideration of the possibility of incorporating a limited Bill
of Rights into the Constitution; of the possible “entrenchment” of new
forms of language and school rights; of institutionalizing certain
fundamental notions of intergovernmental cooperation and consul-
tation; and even of attempting to define certain features of the
responsible government and the political – party processes complex,
now left to the “customs” and “conventions” of the Constitution.
Should there be added to these an amending formula –
as well
there must be –
to make possible the amendment of a Canadian
Constitution within Canada itself, foresaldng thereafter any recourse
to Westminister, this group of additional Constitutional principles
and procedures inevitably invites the possibility, indeed even the
necessity, of judicial interpretation. Clearly, such a list of possible
changes and additions to a partially amended or wholly re-written
Constitution will impose upon Canadian Courts burdens that may be
different, not only in spirit and detail, but in the very principles
and scope of their operations, as well as in the style of their perform-
ance. It is the purpose of this paper to explore these possible changes
in the role and activities of Canadian Courts (and of the final
Supreme or “Constitutional Court” in paarticular) should the above
Constitutional additions and changes, now being debated, come into
effect in whole or in part.
IT. Some Structural Dilemmas of Federal Systems in
Deciding upon ‘Towers” and “Jurisdiction”
The many structures of government in dealing with wellrooted
political traditions, with geographic, linguistic or ethnic differences,
and their frequent efforts to avoid high concentrations of political
power, are among the explanations that account for the varied forms
of many modern federal states. Once a federal design, however, is
* Macdonald Professor of Law, McGill University.
McGILL LAW JOURNAL
[Vol. 16
undertaken, and powers are distributed among the central and
provincial or state governments, there inevitably is presented the
question as to how to make so complex a system operate efficiently
in the face of at least two main, inherent difficulties, apart from
the “functional” versus “doctrinal” views of power. First, there is
the question of “interpreting” the Constitution which describes the
structures of government, and the distribution of powers, since
language can never be so clear as to avoid the continuing need for
its definition and application to controversies as they arise; and,
second, the means whereby cooperative activities can be undertaken
among two or more of the governments concerned, particularly the
federal government in association with one or more of the provinces
although inter-state or inter-provincial cooperation may be of
–
almost equal importance in some few cases –
and the political consti-
tutional, administrative or legal devices employed to provide the
framework for such cooperation.
There is, of course, a third problem which in a sense often
transcends these others, namely, that whenever a federal state may
wish to set out in a Charter or Bill of Human Rights, some statement
of fundamental values governing the behaviour of all the legislative
and executive apparatus, at every level, then the interpretation of
that Charter or Bill also poses serious problems. These interpretations
may not merely have the effect of negatively setting “limits” as
to what the legislative or executive branches of government may
do, but may also set “standards” of high policy through which the
judicial system may have an opportunity, or even may be required,
to give instructions to the legislatures or administrators concerned
ordering them to take positive action in the execution of economic,
social or legal policies expressly stated by, or assumed by necessary
implication to be in, the Bill of Rights itself –
or elsewhere in the
Constitution as well.
Thus a central dilemma for any federal state –
for its general
public and political opinion –
is how far it may be prepared to
accept or encourage indirect or direct policy-making roles for the
Courts either through interpreting the Constitution generally, with
particular reference to the distribution of powers, the structures
and procedures of government, and the institutions for a “cooperative
federalism”, or in applying the “negative” and “positive” mandates
expressed clearly, or by implication, in a Bill of Rights.
It is obvious that both on principle, or viewed empirically through
the evidence of federal systems in operation, that varieties of ap-
proaches to these federal difficulties are possible. The Swiss have
managed to get along without a systematic, judicial approach towards
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JUDICIAL PROCESS AND NATIONAL POLICY
general constitutional interpretation and have left the crucial juris-
dictional questions of Federal power – but not Cantonal authority –
to essentially the political process –
except for a referendum device
that gives public opinion the ‘last word” in a dispute. West Germany
has employed a special Constitutional Court to which all such issues
are referred both as a. matter of original jurisdiction, or even when
the case may have begun in the regular courts, before the consti-
tutional issue was identified, it may thereafter be sent for adju-
dication on the Constitutional question alone to the Constitutional
Court. There is, however, a good deal of early evidence that certain
selflimiting standards as to how far the Constitutional Court should
make statements of high policy ran through the court’s behaviour and
there seemed to be a kind of contradiction in the theoretically power-
ful role of the court contrasted with its self-limiting image –
although
recently litigants, both private and public, may be making new
demands for a more direct policy function by the Court than heretofor.
Australia, beginning with a strong theory of state rights, and of
residual powers in the constituent states, has nevertheless managed
through judicial interpretation to emerge with a rigorous central
government, balanced, however, by the continuing (and even more
recently emphasized) assertions of state power offsetting the func-
tional difficulties by the use of inter-state and federal-state agree-
ments wherever social and economic needs required, e.g. transpor-
tation.
The United States perhaps is the most obvious example of the
impact of the courts on the allocation of power and on the shaping
of policy in a federal structure, and powerfully affecting the system’s
operational dynamics. Ever since Chief Justice Marshall in Marbury
v. Madison I asserted the right of the Court to review and determine
the “validity” of legislation, enacted by Congress or the States, and
ever since that Court discovered the power of the first ten amend-
ments (the Bill of Rights) and later of the 14th Amendment in the
hands of determined judges, the role of the Supreme Court of the
United States has been the illustration par excellence of the candid
sharing of political power, by Courts, in a federal system. The irony
of the American experience is that it began with an essentially
“confederal” attitude and systematically became more and more
“centralist” for varieties of reasons that had to do with westward
expansion, war-making, civil and foreign, and industrialization. All
these gave a drive to national policy and development where the
federal courts became important agents of clarifying federal power
11 Cranch, 5 U.S. 49 (1803).
McGILL LAW JOURNAL
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but were not its mainsprings. Indeed, the influence of the South
on the Court before the Civil War dramatized for example by the
Dred-Scott case,2 and general economic conservatism from 1880 to
1935, showed certain contradictions in the lines of development where
the judicial process was both an aid to the evolution of federal power
but also a considerable brake on it. Indeed, the use by the Court
of the “due process” clauses of both the Fifth and Fourteenth
Amendments, placing limits on federal and state social and welfare
legislation from the last quarter of the 19th Century down to the
middle years of the New Deal, demonstrated that the judiciary in
applying the Constitution could be a quite “conservative” force, how-
ever that concept may be defined.
Yet the overall image of the Supreme Court of the United States
is one suggesting the evolution of a powerful tribunal, self-confident,
politically aware and ready to undertake policy-making whenever a
“case or controversy” was presented to it –
(it has no “advisory”
role).
It must be recognized, however, that apart from the dramatic
achievements under Chief Justice Marshall and a few key judges
over the generations it was really not until the years from about
1937 onward that the position of the Court in taking a “direct”
hand in social and economic policy matured to the point it now
or over-reached. Such historic decisions based upon
has reached –
the First, the Fifth and the Fourteenth Amendments, and other
provisions, that have led to its varied involvements in Criminal justice
administration, racial equality in schools, transportation, accomo-
dation and employment, as well as ordering the restructuring of
electoral representation in the States and Federally, are among the
best-known of these more recent and candid exercises of the power
to make fundamental social policy. Directly or indirectly, the Courts
may compel legislative and executive action by way of creating new
obligations on the part of those branches of government to re-state
and implement the positive law in accordance with the broad policies
and principles as enunciated by the Court.
The Canadian experience on many points seems more analogous
to the Australian than to the American in terms of the technique
and the spirit of the judicial function but the Australian Judges –
Sir Owen Dixon, C.J. is a good example –
and the Australian Bar
often seem to have been more frankly policy-oriented in basic
argument and decisions –
on the interpretation of the Australian Constitution, than has been
if not in forensic technique per se –
219 How., 60 U.S. 393 (1856).
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JUDICIAL PROCESS AND NATIONAL POLICY
the case, with some few exceptions, in Canada. Partly this may be
the result of the leadership of certain very creative Australian judges
on the High Court and the role that the Australian Court has had
as a “final” court of appeal, effectively, for a longer period of time
than is the case of Canada (except for a number of special matters
that have gone from Australia to the Judicial Committee until
1968 when all Federal appeals to the Privy Council were abolished.)
Indeed, a central characteristic of the Canadian experience had
been its reliance for almost eighty years on the Judicial Committee
in London, a tribunal distant in geography, and often in “feel”,
from the Canadian scene and with Anglo-Canadian techniques of
argument at the Bar and of judgment-writing by the Bench, not
frankly oriented toward analysing the policy alternatives almost
always underlying constitutional questions. So generally absent from
both argument and decision has been this dealing, in the Canadian
tradition, with policy that it is not difficult to identify the several
instances where policy in fact has been debated with frankness and
skill, at least at the level of the Supreme Court of Canada. Examples
such as Duff, C.J.’s judgment in the Reference on the Alberta Press
Case,3 the Supreme Court and Privy Council judgments in the
Radio Case 4 and Aeronautics Cases 5 and the Supreme Court judg-
ments, mostly under the leadership of Mr. Justice Rand, in the series
of civil liberties’ decisions that began with the Boucher Case 6 in
1951, almost exhaust the more conspicuous illustrations of serious
policy discussion.7 For the rest, the Canadian Supreme Court has
been influenced significantly in its technique of judicial review by
the Privy Council’s exegetcal search for meaning within the language
of the British North America Act itself or through finding answers
in the principles of the common law wherever constitutional questions
of a non-B.N.A. Act character were before it.
To put is bluntly the Canadian record of judicial “philosophizing”
in the course of interpreting the B.N.A. Act, or in dealing with
constitutional principles in general, has been greatly influenced by
the “inhibited” standards of the Judicial Committee, -and except for
the ‘golden’ moments of the civil liberties decade which generally
3 [1938] S.C.R. 100.
4 [1931] S.C.R. 541; [1932] A.C. 304.
6 [1930] S.C.R. 663; [1932] A.C. 54.
6 [1951] S.C.R. 265.
7 To which now should be added of course 4he Drybones Case ((1970), 9 D.L.R.
(3d) 473) for its significance both ‘as a creative exercise of the Judicial process
and for its inportance in relation to the Canadian Bill of Rights and its applica-
tion to existing positive law, and perhaps equally some of the criminal law
contributions of Cartwright, C.J.
McGILL LAW JOURNAL
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seems to have ended with the late Mr. Justice Rand’s departure
from the Bench, the Supreme Court has continued to move along
a line of conceptual and technical interpretation predictably cautious
and quite unwilling to be drawn openly into policy discussions or the
use of data, social and economic, in furtherance of such an approach.
At the same time, it remains an interesting question whether
the dependence upon written constitutions for any statement of
great principles is always so necessary after all –
apart from the
specific problems defining governmental structures and processes,
and the distribution of powers in a federal state. For example, two
very constitution-minded countries get along with minimal docu-
mentation expressing either structures or principles –
although
both are unitary states, e.g. the United Kingdom and Israel. The
U.K., of course, has a great deal more written instrumentalities than
is often remembered from Magna Carta through the Petition of
Right, the Habeas Corpus Act, the Bill of Rights, the Act of Union,
the Act of Settlement, the various Parliament Acts affecting the
powers of the House of Lords and House of Commons, and some
other related instruments. But perhaps more important are the
“customs and conventions” of the constitution over which the great
battles were fought and which are the true source of the containment
of the Royal Prerogative, of modern responsible government and of
the interplay between the political-and-party structures and systems
and constitutional principles and framework. Above all there is
the use of the word “constitution” to describe the network of legal
relationships between the individual and the state, many of which
have been evolved through the ordinary processes of the courts in
dealing with private actions at law but where the behaviour of
one of the parties may give rise to a principle involving state powers,
privileges or immunities of the kind characterized as requiring some
“constitutional” identification and definition.
The judicial role in the United Kingdom, therefore, has never
been consciously “constitution-oriented” as must be the case for
federal states, with a written constitutional framework. But in at
least three ways the United Kingdom has been very constitution-
minded through (i)
the interpretation of old and new statues or
instruments involving “constitutional” principles or governmental
structures; (ii) through the evolution of the common law of the
constitution coming up through ordinary actions at law and in
equity before the courts but involving an issue directly or indirectly
identifiable as “constitutional”; and (iii) the recognition that there
are certain over-riding concepts of government and society to which
all statutes and executive orders are presumed to conform. This is
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JUDICIAL PROCESS AND NATIONAL POLICY
apparently the meaning of the celebrated doctrine of “avoidance”
where it is assumed that an open challenge to established consti-
tutional principle is not intended in a given statute –
although
there is nothing to prevent a supreme ‘Diceyan’ parliament from
wilfully doing so if it chooses.
In Israel the situation is even simpler, or more complex, depending
how it is viewed. There the total “written” constitution in one sense
is the fundamental proclamation of the independence of the State,
of May 14/15, 1948. To these should be added all the instruments
of public law affecting the principles and structure of government
remaining from the British mandatory period and continued in
general by the new state; as well as those principles of law and
procedure which had within them certain constitutional components
for the protection of the subject, as described above for the United
Kingdom itself
(,e.g. Habeas Corpus, “the rule of law” concept
generally operative in administrative law, contracts, torts, etc.)
Now the point about both the United Kingdom and Israel is that
serious, “rights” and “freedom-minded”
societies can exist with
minimally codified systems of rights; and the role of the judges
under these conditions tends to be paradoxically both a good deal
more and a good deal less significant in the proportion of specific
power allocated to them in the development of constitutional policy
as a whole. Yet even here, of course, the Court’s role becomes crucial.
But unlike a federal state, or a state that is both federal and has
a Bill of Rights of some kind, there is not in the U.K. or Israel the
scope for specific policy-making through the mechanism of judicial
interpretation sad action, either through a written constitution
generally or through a Bill of Rights in particular, or through both.
But of course, not all unitary states are without written constitutions.
Indeed France has a written constitution containing administrative
protections and Bill of Right provisions but apparently subject to
review generally by the Conseil d’Etat rather than by the regular
courts.
The point of all of this is to emphasize, on the one hand, the
role of courts even without elaborate constitutions and Bills of Rights
to interpret, yet at the same time to demonstrate how varied can
be the functions of courts even where there are complex ‘federal’
(or Bill of Rights?) provisions to apply. Perhaps a carefully formu-
lated view of the problem is C.K. Wheare’s summary of the role of
the Courts in the constitutional process, at least in federal states,
and it is not without significance that he quotes at some length,
Dr. O.D. Skelton, a Canadian:
McGILL LAW JOURNAL
[Vol. 16
Yet it is wise to recall what the function of a court is and how far the
judges, the politicians and the people should feel entitled to expect of a court
that.it should undertake the function of adapting a constitution to the needs
of the time. Courts may adapt, but they may not amend. They may follow
common sense, but they may not follow mere expediency. They may have
opinions but they may not be partisan. They may choose to treat a constitu-
tion as a living instrument, but they must treat it first of ali as a constitution.
And, although it may be wise for a court to give the legislature the benefit
of the doubt, where there is a doubt, it is no part of a court’s duty to do
for a legislature or for a majority of the electors what a Constitution has
not done for them. Many of these restrictions upon a court’s powers and
duties are forgotten in discussions which emphasize the great powers which
courts in a federal system do possess. It is true that their powers are great.
But there are definite limits to their powers. They have a discretion, but
it is a discretion within the law and not above the law. “Courts may modify,
they cannot replace. They can revise earlier interpretations as new argu-
ments, new points of view are presented; they can shift the dividing line
in marginal cases; but there are barriers they cannot pass, definite assign-
ments of power they cannot ,reallocate. They can give a broadening con-
struction of existing powers, but they cannot assign to one authority powers
explicitly granted to another”…s
IIl. Some questions and possible guidelines for the role of
the Judicial Process in a changing Canadian
constitutional structure and system
A number of interesting questions now arise from the present
constitutional review and possible program of reform and their
probable effects on the position of the Canadian Courts in the future.
These questions may be put as follows:
1. Will the role of the final court of appeal in constitutional
‘enlarged’ by the proposed constitutional
matters in Canada be
changes in governmental powers and structures; in now attempting
to define the classical principles of government, e.g. responsible
government; in possibly having a Bill of Rights in the Constitution,
or in possibly entrenching language rights in such a Bill or outside
of it?
2. Will the Courts have a new function to perform dealing with
problems of inter-governmental cooperation –
province to province
and federal-provincial –
in the event that such cooperation or con-
sultation is given institutional and “mandatory” definitions in the
Constitution?
3. How will the present or changing character of the Bench, the
Bar and the Law Schools influence the methods of analysis to be
8K.C. Wheare, Federal Government, 4th ed., Oxford University Press, at pp.
222-223.
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JUDICIAL PROCESS AND NATIONAL POLICY
employed by Courts in constitutional matters and what feedback
will such changes, if any, have on the policy role of Courts and on
the making of “new” public policy in general, and also on the work
of the Bar and the direction, of research, teaching -and training in
the law schools?
4. Are there advantages or disadvantages to be considered in
choosing constitutional mechanisms that increase or otherwise vary
the role of the Courts as we have known that role heretofore, in
Canada, in constitutional matters?
Re: 1: Will there be an enlarged role for judicial action in a
reformed Canadian Constitution?
Despite the quite severely self-limiting and strict interpretation
traditions, generally, of the Canadian Courts (and of the Judicial
Committee) in constitutional matters (except for the philosophizing
of Rand, J., Duff, C.J. and one or two others at the Supreme Court
level) it seems improbable that, whatever may be the form of the
final court of appeal in constitutional matters, its role should not
be enlarged by several of the proposals for constitutional change
now being considered by all governments. Altogether apart from
changing allocations of power that possibly may result from some
new statement of distribution between the federal and provincial
legislatures, (if any), some of the proposals clearly will require
judicial attention
in areas now exclusively determined by the
“customs and conventions” of the Constitution. If, for example, there
is a definition of the nature and operation of responsible government;
the status and power of the Governor General; or even the legal
position of political parties (as some have suggested), such con-
stitutional language, however skilfully drafted, will at -least in the
early years of the new provisions clearly be an invitation to judicial
review and interpretation.
However, even if these new areas were to be well fitted within
the existing traditions of Canadian constitutional interpretation, the
insertion of a Bill of Rights manifestly will require a degree of
judicial participation in both the negative and positive aspects of
policy-making that may far exceed what is presently the customary
Canadian pattern. The “draft” federal Charter of Human Rights, for
example, cannot be imagined as having anything but the most
comprehensive impact on litigation, on new standards by which to
judge legislative, executive and administrative behaviour, as well
as on new principles and procedures to “command” the legislative
and executive branches of the Government to take action or to
interrupt such action in areas of important social policy, in the name
McGILL LAW JOURNAL
[Vol. 16
of the higher ‘norms’ of the Charter or Bill of Rights itself. The
possible scope for such directives by the Court can be envisaged by
considering the scope of the directives given by the Supreme Court
of the United States in the school desegregation and the reapportion-
ment cases. To a very large extent, the areas and dimension of such
judicial participation will depend upon the initiatives of the Bar,
and of governments, in directing the attention of the Courts to these
new provisions and the response of the Bench in moving within a
quite unaccustomed field of action, at least in this first period.
Similarly, if Language Rights axe to be found in such a Charter
or Bill of Rights, or if they are ‘entrenched’ outside of such a Charter
but in the Constitution elsewhere, then interesting questions will
arise as to how far new authority will have been given to the
Courts to measure standards of federal and provincial legislative
and administrative action in accordance with the litigated demands
for such rights, brought to the attention of the Courts by various
levels of government or by private actions. In any event all these
possibilities envisage a much more dynamic use of litigation both
to stimulate policy and its judicial interpretation and application and
envisage perhaps, even more, an increasing confidence in the judicial
process to perform such functions in the name of adjudication,
functions which heretofore had a high degree of autonomy in the
administrative or legislative branches of the government with policy
generally reserved to government itself, to initiate and administer.
Yet the moment it is admitted that greater precision is desired
in any statement of so-called “rights”, through a Charter or otherwise,
it must at the same time be admitted that Courts will be required
to determine their meaning and application. Whether there are social
gains or losses here in terms of new protections on the one hand,
or the disutility of too broadly shared power on the other, remains
to be seen. But a new level of duties will clearly be assigned to the
courts, and particularly the final court of appeal in constitutional
matters, and correspondingly some new sense of self-limiting caution
may now equally be envisaged in the operations of the legislative
and executive processes.
Re: 2: The Courts and Inter-Governmental Cooperation9
If the above description of the potentially changing role of the
Canadian judiciary suggests a new dimension, such a change will
9 This paper does not discuss the Court’s specific role in dealing with provisions
for amendment or delegation. But these other principles here analyzed apply
mutatis mutandis to the amending power itself -to be entrenched in the constitu-
tion.
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perhaps be even more striking should any future Constitution insti-
tutionalize methods of intergovernmental cooperation. On the simplest
level disputes between Provinces or the federal and provincial govern-
ments could, of course, be dealt with through providing original
jurisdiction in any final court of appeal in constitutional matters.
As to Federal-provincial disputes this should present no particular
difficulty although any increase in such litigation may require new
standards of judicial analysis since now the issues will often be
no longer related essentially -to the classical questions of the dis-
tribution of powers; rather there will be presented new questions
having to do with governmental rights and duties, under some as
yet “novel” and unclear theories of Canadian federalism, to cooperate
or consult whenever some essential common interest was involved,
should that obligation to consult or cooperate now be incorporated
in constitutional terms in any new instrument.
It will at once be evident how sensitive and difficult it will be
to convert the practices of the presently voluntary and strategic
negotiations and cooperation between governments, into constitutional
rights and duties that may be subjected to the compulsion of Courts
and the burdens of litigation. Clearly the advantages of compulsory
cooperation may have to be considered against the disadvantages
of the reduction in the political discretion that may seem essential
to the federal or provincial governments as they view their own
problems and strategies from time to time. Yet if the demand for
federal-provincial cooperation and consultation is as insistent and
as extensive as it often has been in recent times, it is not unlikely
that there will be demands to “compel” that consultation not only
as a matter of political -custom or wisdom but as a matter of
constitutional duty. It will be a markedly different federal system
if the Federal Government or any Province or group of Provinces
can be compelled to “consult” and to “cooperate”, and their legis-
latures ordered to take action or to stop action, until some standard
of consultation and cooperation among them has been completed
either as set out specifically in the Constitution or as interpreted
and developed, on the basis of some general principles, by the Courts
themselves.
Any such program of constitutional reform must accept the reach
of the judicial arm quite beyond -any contemporary Canadian ex-
perience in dealing with high policy other than those questions
that have come before the Supreme Court or the Privy Council
through the traditional requirements of interpreting the British
North America Act or formulating large principles of the “common
law” of the Constitution. But little of this experience really prepares
McGILL LAW JOURNAL
[Vol. 16
Canadian society for the prospect for having judges command legis-
latures to cooperate, for example, in the coordination of their budgets
or not to take steps through executive action to market their securities
without the permission of some common agency. This may be an
extreme illustration of the consultative or cooperative technique
constitutionalized to the point where judges are given a degree of
discretion to intervene, not dissimilar from commands by the Supreme
Court of the United States that the state legislatures should move
toward desegregation by legislative and executive action, with all
“deliberate speed”, reporting back from time to time to the Courts,
as required and ordering a “speed-up” accordingly.
Finally, on this point, some new forms of political insight may
be required of the judges, but there is no reason to believe that
they would not have the wisdom to employ their authority within
those reasonable bounds intended by such constitutional changes –
namely, to make new systems of federal-provincial cooperation, now
institutionalized, work as well as possible but subject to countervailing
realities of leaving governments severely alone up to the last alterna-
tive moments before such judicial intervention would be justified.
Yet the Courts in their timing may largely be in the hands of the
litigants who will choose the issues and the moment for their actions.
Re: 3: The Capacity of the Bar and the Bench to play these new
roles
It is likely that the introduction of a changed role for the Courts,
in the application of these new constitutional concepts and procedures,
may present, initially, some considerable technical difficulties as,
for example, the kind of information that the parties through evidence,
factums and counsel, will be required to present. Equally there will
be much adjustment for those governments which valued the “abso-
lute” discretion of the older “voluntary” days of intergovernmental
cooperation. Nevertheless, it would be wise to recognize that theories
of strict interpretation, of finding “simplistic” answers within the
framework of the “new” constitutional document itself, probably will
not suffice for the enlarged scope of interpretation and action now
presented by a Bill of Rights, a new system of language rights,
the definition of responsible government and the institutionalizing
of consultation -and cooperation in a “new” federalism. Clearly the
magnitudes of potential litigation and of judicial responsibility will
have altered substantia.y, and in turn may weal influence the volume
of actions in the Courts initiated both from the public and private
sector.
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JUDICIAL PROCESS AND NATIONAL POLICY
‘Will the next generation of Canadian judges, and will the Cana-
dian Bar functioning within its established and technical adversary
tradition, be able to meet, constructively, these new challenges to
having them play ever more sophisticated informational and inter-
pretative roles in the management of Canadian federalism? Some
preliminary doubts may be raised about expectations here. Much
depends upon the quality of the men involved and upon the character
of legal education itself and the willingness of the Bench to relate
the new roles to the kind of informational input, or sources of au-
thority, which heretofore cautious Canadian Courts have been re-
luctant to accept –
sources now to be supplied by government
documents and the behavioural sciences. It is highly probable, how-
ever, that once given the fact of constitutional change and that
such a new role must be played, there would be reason to expect
that the Courts, the Bar and the Universities will respond accord-
ingly. But there may be a period of at ‘least a decade or more
within which Canadian judges, and more particularly the final
“constitutional”
tribunal, will be feeling their way toward the
appropriate balance to be found in performing these new and often
more direct policy-making functions. Moreover, once such doctrinal
changes take place in the key areas referred to, decisions on them
will ,likely have pervasive effects throughout the whole of the con-
stitutional process. It would be unlikely to -discover that the same
judges will be reluctant to discuss, frankly, the policy content in
cases concerned with the distribution of powers, while having no
such inhibitions in their interpretative roles ‘affecting the Bill of
Rights or the new institutions of federal-provincial cooperation.
Re: 4: What are the possible advantages or disadvantages of
these prospective changes in the role of the Courts and
National Policy?
Central to the above analysis has been the assumption that
Canadian federalism for over a hundred years, on the whole, has
been a considerable success in the management of a very complex
country whose linguistic, geographic and economic divisions, and
regional disparities, have created tensions, possibly exacerbated
also by certain structural weaknesses in the forms, principles and
operations of the governments concerned. Indeed this success was
achieved despite some very obvious distortions in the Canadian
constitutional development because of a local government bias gen-
erally on the part of the Judicial Committee -and the enlargement
of de facto federal authority because of depression, war and post-
war needs. Viewed realistically therefore, an enlargement of the
McGILL LAW JOURNAL
[Vol. 16
role of the Courts (now exclusively Canadian) may possibly signify
some corresponding reduction in the discretionary “political” position
of the legislative and executive branches of aa governments. Yet the
fact will remain that judges cannot replace politicians or civil
servants in conducting the regular business of government and for
the most paxt, the mass of traditional governmental business doubt-
less will be carried on as heretofore by elected leaders and their
permanent officials.
What will change, however, is the ability of one or more govern-
ments to act beyond, or outside, or not within the spirit of a more
detailed, structured constitution. Indeed, in some cases governments
will find that they may be compelled to take actions because the
Constitution or the Courts have said so, actions that previously
(today) they otherwise might have been able to refuse or at least
to have politically deternined for themselves; whether they would
act, and when? While judges, law and “constitutions” are familiar
and indispensible to the operations of any organized society, the
degree of acceptable judicial intervention into policy-making will
depend both upon the Constitution itself and the individual poli-
tical-constitutional tradition. The two extremes in the English-
speaking world are the United Kingdom, with the judges com-
pounding the -absence of a “written” constitution by a theory of
self-limitation, 1 in contrast to the United States where the Supreme
Court has escalated its constitutional status within a written con-
stitution to become truly the third branch of government in political-
administrative fact as well as in constitutional theory.
It is unlikely that Canada or Canadian judges will quickly leap
to achieve the often controversial heights of the Supreme Court
of the United States; but it is certainly to be expected that the
possible introduction of ‘some of the critical changes now being
discussed for a future Canadian Constitution may enlarge the role
of the judicial process in policy-making, however cautious the Ca-
nadian tradition heretofore may have been. Considering the threats
to Canadian federalism and -solidarity that have appeared in recent
years, it very well may be that a shift of ‘some power from the
purely political-administrative plane to a constitutional-judicial level
might, in fact, help to bring some new measure of stability into
the relations of all the governments concerned –
assuming always
1o ut see the recent line of cases in the United Kingdom pointing toward a
more candid statement of policy, e.g., United Engineering v, Devanayagam,
[,1967] 2 All E.R. S67; Liyanage v. The Queen, [‘1 7] A.C. 259; Conway V.
Rimmer, [1,968] A.C. 910; Ridge v. Baldwin, [164] A.C. 40.
