The Charter: A New Role for the Judiciary

Abstract

The Honourable Madame Justice McLachlin. in this transcript of her presentation of the Weir Memorial Lecture, discusses the fundamental change in the role of the Canadian courts brought about the adoption of the Canadian Charter of Rights and Freedoms and how they should go about discharging the new responsibilities which the Charter has placed upon them. Madame Justice McLachlin begins by considering the previously unlitigable range of social and moral questions which are now confronting the Canadian courts and the difficulties that this is causing in judicial decision-making due to the absence of precedent, the open-textured language of the Charter and the necessity of making value-based decisions. In addressing these problems, Madame Justice McLachlin suggests that first, the courts must strive for objectivity, ensuring that their decisions reflect the collective views of society, and second, that they exercise restraint, upholding the Constitution but not intruding upon the preserve of the legislature and executive branches of government. Madame Justice McLachlin then examines the issue of remedies under the Charter; focusing on how the courts should enforce the rights and freedoms which the Charter has guaranteed. The answer, she suggests, must be found in respect, tradition and constitutional convention focusing on political judicial cooperation.