Unwritten rights must be upheld, chief justice says

OTTAWA — Judges should feel “ emboldened” to trump the written word of the constitution when protecting fundamental, unwritten principles and rights, says Canada’s chief justice.

Beverley McLachlin, in a s p e e c h d e l ivere d i n New Zealand, took on critics who say judges have no business going beyond the strict letter of the constitution to strike down laws and enforce rights.

“ The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion,” said a prepared text of the lecture McLachlin gave to law students at Victoria University of Wellington late last week.

“There is certainly no guarantee or presumption that a given list of constitutional principles is complete, even assuming the good faith intention of the drafters to provide such a catalogue.”

McLachlin set out a blueprint for when judges must rely on unwritten principles, which she defined as “norms that are essential to a nation’s history, identity, values, and legal system.”

Even in countries that have written bills of rights enshrined in their constitutions, like the Canadian Charter of Rights and Freedoms, McLachlin said unwritten principles have a role for several reasons. Societal values change over time and the constitution document can be incomplete or open to interpretation.

“I believe that judges have the duty to insist that legislative and executive branches of government conform to certain, established and fundamental norms, even in times of trouble,” she said.

Even countries without constitutionalized bills of rights, such as New Zealand, find ways to ensure fundamental justice based on unwritten norms of fairness, she said.

She noted critics have advocated reining in the use of unwritten constitutional principles on the grounds that it amounts to “judicial imperialism” or even the personal views of an individual judge.

In 1998, the Supreme Court of Canada broke new ground by invoking unwritten constitutional principles in an historic opinion on whether Quebec could unilaterally secede from Canada, she said.

McLachlin listed several unwritten constitutional norms that have evolved into entrenched rights over time, such as the right to not be punished without a trial, to retain counsel, and enjoy the presumption of innocence.

CanWest News Service