David M. Beatty

The ultimate rule of law

1. The Forms and Limits of Consititutional Interpretation 2. Liberty 3. Equality 4. Fraternity 5. Proportionality

POLLUTING THE LAW TO PROTECT THE ENVIRONMENT

On Septemb er 18, 1997 , in a close 5:4 decision, the Supreme Court of Canad a ruled that the federal government had the constitutional authority to enact the Canadian Environmental Protection Act (C.E.P.A.) and, in particular, a complex and detailed set of regulations controlling the emission of toxic substances. The instinct of most people on learning of the case is, not surprisingly, to applaud. A clean env ironment is near the top of almost everyon e’s political w ish list. On closer inspection, howev er, it is hard to regard the

Dean of Law

Courts and law faculties struggle with a common problem: how to encourage their members, who are expected to have their own views and ideas about the law, to speak in a collective voice. Although judges and law professors are free to interpret and write about the law from different perspectives, they must agree on the most basic aspects of their mission if the institutions to which they belong are to flourish. At first blush, one might think the problem was more acute for academics than for members of the judiciary. After all, law faculties usually include many more people, and the range of legal theories they put on offer is much broader than could ever be accommodated on a court. And, sadly, there have been too many examples in the recent past of law schools suffering when the faculty are unable to agree on the larger, collective enterprise of which they are all part. On reflection, however, it seems that getting a consensus of judges is the more urgent and demanding challenge. Courts cannot tolerate serious disagreement among their members about the basic rules of law and principles of adjudication without seriously threatening their own legitimacy. Especially in constitutional cases, when they sit in judgment on the elected branches of government, agreement on the fundamentals is essential. Without it, the objectivity and impartiality that is claimed for the rule of law will be lost. Courts that consistently issue multiple opinions in major cases send a strong message that there is no one right answer in law and, in so doing, put the integrity of judicial review and the legal enforcement of human rights in doubt. The fact that courts cannot tolerate nearly as much disagreement among their members on the most basic questions of law and legal reasoning means that the scope of the consensus that they are required to achieve is correspondingly much broader. Whereas a wide diversity of opinion is the mark of a great law school, unconstrained judicial discretion is incompatible with basic precepts of democracy and popular sovereignty. Governments in which judges can vote to establish the limits of legitimate law-making according to their personal understanding of the law are judicial oligarchies, not democracies that adhere to the rule of

Peevish Propensities and Perverse Proclivities: Unions, Courts, and Constitutional Labour Codes@@@Putting the Charter to Work: Designing a Constitutional Labour Code

Rather than considering the relationship between the three branches of government in the abstract, Beatty focuses on legal practice as it functions in labour law, and shows how the Charter could be used both to reform labour law and to protect against attempts to reverse gains made in labour legislation in the past. Beattys critical analysis rests on two principles: that the Charter provides equal liberty for all workers to participate in determining the conditions that govern their working life, and that fundamental rights should be limited only by laws employing the least repressibe alternative. These principles are applied to the constitutional validity of rules that prohibit discrimination: those requiring payment of minimum wages, excluding groups from collective bargaining laws, mandating retirment at a specific age, and requiring membership in trade unions. Beatty argues that the current model of collective bargaining cannot be constitutionally sustained and that voluntary and/or plural representation of employee interests is more compatible with the Charter. The final part of the book makes clear just how dramatic achievements in social justice can be. Beatty shows that the process of judicial review can be instrumental in extending meaningful institutions of industrial democracy through all sectors of our economy and argues that interest group advocacy can be an effective means by which the least advantaged in our community can have more influence in determining the law which governs their working lives.