Altering the Judicial Mind and the Process of Constitution-Making in Canada


  • Bruce P. Elman



This essay deals with the alteration of the Supreme Court of Canada's approach when confronted with alleged violations of civil liberties in the pre-Charter and post-Charter eras. It is noted that certain statutes, such as the Lord's Day Act, were upheld under the Canadian Bill of Rights, but have since been struck down under the Charter of Rights and Freedoms under relatively circumstances. The author asserts that the changes in the approach to civil liberties, and the changes in the Supreme Court's decisions, are the result of a change in judicial attitudes. Among the factors responsible for acting as a catalyst for this shift in attitude, the author identifies and discusses the change in "principle" resulting from the constitutionalization of rights and the concomitant change in the Courts role, the change in "personalities" resulting from changes in the composition of the Supreme Court, and the "process of constitution-making" used in entrenching the Charter, which gave more legitimacy to the Court's role as interpreter of the Constitution than did the Bill of Rights.