The Courts and the Law Can Also be a Source of Justice

Those who are supporters of the Conservative party, have made a lot of noise about the democracy of free votes in parliament. To that notion they have attached ideas of "freedom" whatever that may mean to them, because they seem to imply that freedom and democracy would still exist even if a free vote resulted in a removal of the rights of others.

I think it's far too easy to forget that the law and the courts can also be a source of not simply freedom, but of justice. The law is about recognizing what is right, what is considered acceptable behaviour in a society. But a truly just society makes an effort to include, not exclude. A truly just society set out protections, rights and freedoms for all it's citizens, not simply those who happen to attain a majority and then use their power to oppress others. That is not a just society, and that is not the kind of society I want to live in.

Owen Fiss, Sterling Professor of Law at Yale Law School, recently gave an address during a ceremony in which he received an honorary doctorate of laws degree at the University of Toronto. Part of his speech dealt with the Canadian Charter of Rights and Freedoms, and the active and progressive interpretation of it by the Supreme Court of Canada:

The 1982 Charter of Rights and Freedoms embodies a vision of constitutionalism that once belonged to Brown, and the Supreme Court of Canada has developed that brand of constitutionalism in profound, inspiring ways. The Supreme Court of Canada has made equality the centerpiece of its jurisprudence, has insisted that equality be measured in terms of effects, not purposes. The focus has been on the social consequences of those who are subject to the law, not the mind of those who wrote the law. The court has taken this emphasis upon effects and has brought it to the domains of religious liberty and to free speech, and it has accounted for the court's ready acceptance — of course, taking cues from the Charter itself — of affirmative action as a strategy to eliminate disadvantage.

Building on this jurisprudence, the court has given the equality value forceful expression on behalf of women and the disabled, has extended it to sexual minorities, and in the context of applying the equality value in other domains including free association, has begun to protect the economically disadvantaged.

On top of this, the Supreme Court of Canada has understood, in a way that few other courts in the world have understood, that equality, as a true and substantive value, sometimes requires positive remedies. From that perspective, it has read into an anti-discrimination statute a protection for gays and lesbians; it has required instruction in sign language for the deaf; and it has insisted that a provincial legislature retain a protection for freedom of association when it came to the plight of farmers.

I would insist that anyone who is prepared to celebrate Brown v. Board of Education must today celebrate the jurisprudence of The Supreme Court of Canada. These decisions provide a standard against which we can measure our own work and reveal how short our own jurisprudence has fallen from what it could be. These decisions also provide an inspiration. They indicate in a very concrete and immediate way of how the ideals that we share in common could be realized and elaborated, much like seeing a tree — a living tree — in a neighbour's yard, tall and lush with its branches reaching to the heavens.

I have spoken of the law and I beg your forgiveness for that, because that is my professional subject. But the disenchantment that we in the United States have experienced in the law extends more broadly. The disenchantment that we have experienced in the law has extended to society, and to our politics in general. For me, law is just a metaphor for our public life.

In the 1960s, the public life in the United States was dominated by an image of the National Guard, in an orderly systematic way, escorting a handful of black children into Central High School in Little Rock, Arkansas. The idealism and the nobility of that encounter were plain for all the world to see. Today, Little Rock has been replaced by an image of a pile of naked, hooded bodies in Abu Ghraib Prison in Baghdad.

Many of us in the United States are committed to reversing this course of history. The burden of doing so is an enormous one. We will take up that burden with full understanding of its gravity, and when we do, we will look north for guidance and inspiration.

Delight in your sovereign prerogative. By example, remind us of all that democracy could be. Be true to yourselves and in doing so, you will provide a lesson for all the world. Speak, Canada, speak. We are listening. (click here for the full text from the Toronto Star)

Electing representatives to the House of Commons is but one means of measuring the justice in our society. But the House of Commons is not the only measure by which we judge whether our society is just, whether it is fair, whether it is free.