MONTREAL — If the framers of the Charter of Rights did not want judges to rule on moral and ethical issues, they should have said so, Mr. Justice Ian Binnie of the Supreme Court of Canada said yesterday during a freewheeling debate with U.S. Supreme Court Justice Antonin Scalia.
In a good-natured but hard-fought debate to close a McGill University conference marking the 25th anniversary of the Charter, Judge Binnie extolled the virtues of measured judicial activism over an archaic notion of “frozen rights” that do not evolve with the times.
Judge Binnie said that judges who make a fetish of determining the “original intent” of constitutional drafters are deflecting their responsibility, weakly saying that “I'm only following orders.”
“The ability of the courts to move with the times has served this country very well,” Judge Binnie said. “I say that if you erect a silo over our court system based on a theory of originalism, it is a very good reason to throw it out.”
However, Judge Scalia attacked Judge Binnie and his own U.S. Supreme Court brethren for believing that unelected judges are qualified to act as social engineers who possess a greater level of expertise in deciding morally laden issues than doctors, engineers, the U.S. Founding Fathers or “Joe Six-Pack.”
“We have become addicted to abstract moralizing,” Judge Scalia said. “It is blindingly clear that judges have no greater moral capacity than the rest of us to decide what is right.”
He mocked the prevailing judicial belief in Canada that the Charter is “a living tree” that must be given a broad and liberal interpretation, lest its growth be stunted.
This notion simply encourages judges to make anti-democratic decisions that extend rights to questionable groups such as bigamists and pederasts, he said.
Judge Scalia said back in the days when the United States was a true democracy, citizens changed the Constitution if a consensus developed around adding or eliminating a human right. “What democracy means is that the majority rules,” he said. “If you don't believe that, you don't believe in democracy.”
Judge Scalia ridiculed his court's landmark ruling legalizing abortion in Roe v. Wade, saying that it was absurd to issue such a decision without deciding first when a fetus becomes a human life. “Amazing!” he said. “Of course, that question was central.”
However, Judge Binnie countered that adding and subtracting constitutional rights can become close to impossible. Every time the extension of a right is proposed in Canada, he said, “everybody jumps up with their own complaint.”
Judge Binnie cited an attempt by former Newfoundland premier Brian Peckford in the early 1980s to have his province's right to control fisheries written into the Constitution. When former prime minister Pierre Trudeau asked how he could possibly balance fish against human rights, he quoted Mr. Peckford as saying, “That's your problem.”
“I say that judges are as much a part of society as anyone else, and they can recognize a dead letter when they see one,” Judge Binnie said.
Judge Binnie also took a backhand swipe at former Federal Court judge Barry Strayer, who said earlier in the conference that, when he helped frame the Charter as a senior Justice Department bureaucrat, nobody anticipated how far the Supreme Court would one day go in assessing the wisdom of laws.
Judge Binnie said that if the drafters had actually intended for the courts to tinker only around the edges with procedural aspects of laws, rather than their pith and substance, “then you should have said so... .”
“This more or less disposes of judge Barry Strayer's complaint...,” Judge Binnie added.
Judge Binnie referred to the Supreme Court's Burns and Rafay ruling – in which it refused to extradite two men to face murder trials in the U.S. if they were subject to the death penalty – as a high-water mark for his bench.
Judge Scalia immediately turned it on his head, ridiculing those who believe that any convicted murderer might actually be innocent.
“I have been on the court for 20 years and I have not seen a case where I thought there was the slightest doubt about the person's innocence,” he said.
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