Armed with this information, one might well expect the Charter’s practical impact to be minimal. But this has not proved to be the case. Judges interpret the meaning of section one to suit their purposes, and the notwithstanding clause is rarely if ever used, for fear of contradicting the notion of judicial independence. As a result, a new philosophy of judicial supremacy, in aid of a late modern or postmodern rights-based liberalism, guides Canadian jurisprudence.

It is a philosophy under which the balancing of interests—nominally undertaken by Canadian courts—tends to result fairly consistently in the triumph of individual or group autonomy. But this is an autonomy that is divorced from the limitations of early modern liberalism, particularly the limitation of political consent. In this sense, it is a postmodern, self-expressive liberalism. As such, it threatens the right of people to exercise a traditional kind of liberal-democratic prerogative—the freedom of self-government, not to mention the realization of rights through the slow, steady accretion of common law wisdom, rather than the insistent demand for immediate results, handed down from the philosopher kings of the courtroom.

Post-Common Law Jurisprudence

The change in Canada has been marked. At its most straightforward, the new philosophy was captured by a Justice of the Supreme Court of Canada, Bertha Wilson, in her ruling in the 1988 case of R. v. Morgentaler, which overturned Canada’s penal statute governing abortion. In that case, she exalted individual autonomy and the right to unconstrained private choice as a means to dignity and self-worth. She agreed with the claim that the “liberty” mentioned in section seven of the Charter includes the full control of one’s life and individual autonomy. Relying on Roe v. Wade, Wilson held that “the respect for individual decision-making in matters of fundamental personal importance reflected in the American jurisprudence also informs the Canadian Charter.” Further, as to the fundamental “choice” that is abortion, she said “It is probably impossible for a man to respond, even imaginatively, to such a dilemma not just because it is outside the realm of his personal experience (although this is, of course, the case) but because he can relate to it only by objectifying it, thereby eliminating the subjective elements of the female psyche which are at the heart of the dilemma.” And this was conjoined with a lamentation that “women’s needs and aspirations are only now being translated into protected rights.”

To appreciate the general nature of this type of legal reasoning, one need only compare Wilson’s words with those of the plurality opinion of the U.S. Supreme Court, in the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

In the Morgentaler case, the then Chief Justice of Canada, Brian Dickson, chose to rely on a purported breach of the Charter guarantee of security of the person to strike down the impugned Canadian Criminal Code provision restricting abortion. At stake, in the view of the Chief Justice, was a woman’s “bodily integrity,” which included integrity in both a “physical and emotional” sense. As one observer of Canadian constitutionalism has noted, he thus concealed the court’s policy-making role “by converting indeterminate substantive issues into procedural questions.” This, of course, is a trick that has been well-honed in American courts, beginning in earnest in the mid twentieth century.

The Morgentaler case therefore captures in a nutshell two phenomena critical to understanding the contemporary Canadian judiciary. First, it illustrates the obsessive concern with the self that is at the heart of late modern philosophy and which, despite its democratic veneer, actually prevents the people from acting in a political sense. Second, it shows how the Charter encourages a kind of reasoning that is legal, or legalistic, in the most technical sense of the term, and that does not take full account of competing moral-political arguments.