Rules of Construction, Stare Decisis, and the Doctrine of Precedent are of Limited Value Because of the Charter

Prior to her appointment to the Supreme Court of Canada, current Chief Justice Beverley McLachlin wrote:

The Charter means that judges are called upon to answer questions they never dreamed they would have to face, such as the right to abortion, the right to work after sixty-five and the right to practice one’s profession as one wishes. To make matters more difficult, the Charter has deprived judges of their traditional methods of answering the questions that are put before them. Rules of construction, stare decisis and the doctrine of precedent are of limited value when one is not only confronted by new issues, but required to make fundamental value choices in deciding them.

--Emmett Macfarlane, introduction to Governing from the Bench: The Supreme Court of Canada and the Judicial Role, Law and Society (Vancouver: University of British Columbia Press, 2013), 11.

The Supreme Court of Canada Is a Political Institution and Its Justices Are Important Political Actors

This book proceeds from the premise that the Supreme Court of Canada is a political institution and that its justices are important political actors. This is not to equate the institution with elected legislatures or its justices with politicians. Indeed, one of the main objectives of this study is to examine the multitude of ways in which the judges of the Court are bound by their conceptions of their appropriate role and that of the institution in which they work. Nevertheless, the analysis that follows supports the argument put forward by many political scientists that judicial policy making is not an accidental by-product of the Court’s adjudicative function. Rather, it is a result of the justices’ determination that one set of legal rules is more socially beneficial than another.

--Emmett Macfarlane, introduction to Governing from the Bench: The Supreme Court of Canada and the Judicial Role, Law and Society (Vancouver: University of British Columbia Press, 2013), 5.

The Judicialization of Politics

The Supreme Court of Canada’s importance can be measured not only by its rulings’ effects on the country’s law and the immediate policy issues that come before it but also by the influence its decisions have on governance, political culture, and public discourse. A fundamental aspect of the “judicialization of politics,” which is enacted by the Charter  in Canada – in which the Court is a central actor – is not only the transfer of power to the courts but also, in Peter Russell’s words, “a general transformation of the nature of political life.” The decision to entrench the Charter  has had significant consequences. Ran Hirschl argues that the Charter  has encouraged legislatures to abrogate political responsibility for the resolution of contentious national questions. He contends that the transformation of controversial and complex political issues into legal questions deprives most of the citizenry of the opportunity to address these issues through public deliberation and other forms of participation.

--Emmett Macfarlane, introduction to Governing from the Bench: The Supreme Court of Canada and the Judicial Role, Law and Society (Vancouver: University of British Columbia Press, 2013), 2.