'This New Democracy.. . ': Justice Iacobucci and Canada's Rights Revolution

'. . . this new democracy based on constitutionalism and individual human rights.'¹

I Introduction

Justice Frank Iacobucci's years on the Supreme Court of Canada, 1991 to 2004, coincided with an unexpectedly volatile period in the Court's history. The Court had delineated the main features of the Charter's legal structure and methodology in the first generation of cases. It was reasonable, therefore, to anticipate a period of consolidation. Instead, a second generation of cases precipitated re-evaluation of some of the most basic questions of Charter interpretation, argumentation, and institutional roles. These challenging cases gave Justice Iacobucci the opportunity to think deeply about particular issues in the light of larger questions. In the tradition of other great common law judges, he built upon the strengths of his predecessors' work as he analysed the particulars raised in each new case in the light of the applicable principles.

Justice Iacobucci brought distinctive strengths to the Court. His academic background gave him a firm grounding in structured areas of law. While specialization in corporate, commercial, and tax law might appear to be an unusual preparation for Charter adjudication, these specialized fields raise a similar tangle of concerns – the interplay between the individual and the collective, substantive and procedural fairness, rights and duties, written and unwritten norms, and self-interest versus the public interest. As a teacher, Justice Iacobucci was admired for his ability to build courses from first principles to their full legal complexity and social import, the precise skill necessary for adjudication in an evolving area of law. His administrative, organizational, and leadership skills, initially honed at the University of Toronto, were further developed during his tenure as deputy attorney general of Canada. In this position he had the opportunity to direct the national government's legal dossier, become familiar with the workings of Cabinet and Parliament, contend with the complexity of Canada's federal arrangements, and observe the Supreme Court of Canada at close quarters. His stint on the Federal Court of Appeal gave him invaluable judicial experience and expertise at the appellate level.

However, perhaps the most important element supporting Justice Iacobucci's approach to the Charter was nature's gift. Anyone who knows Justice Iacobucci will attest to his remarkable warmth, empathy, and concern for his family, friends, students, and professional associates – indeed, for all who cross his path. He spoke to his own strengths when he described a good judge as one who engages both the heart and the mind, has courage, remains attuned to fairness, listens carefully to all claims and positions, and reflects upon the implications of rulings in the world in which we all live our lives. The judge should not, however, follow his heart when it is not possible to provide the legal grounding for a favoured position.²

Justice Iacobucci tells us that he approached Charter adjudication without a blueprint, as a 'work in progress.'³ He worked out his view of the Charter in the interstices of countless substantive, procedural, interpretative, and institutional questions that reached the Court in no particular order. He approached these questions with a strong commitment to collegiality and consensus building, dissenting only when he could not accept the legal grounding supported by his fellow judges.⁴ Nonetheless, his Charter judgments delineate an intelligible framework that is easily integrated within the Canadian constitutional order. These judgments also connect the Charter to a larger dynamic – the international and transnational movement to rights-based democracy.⁵

In an article published just as he took up his appointment on the Supreme Court, entitled 'The Evolution of Constitutional Rights and Corresponding Duties,' Justice Iacobucci expressed reservations about the Charter.⁶ This essay traces the development of the modern understanding of the individual. Enlightenment theory freed the individual from a societal organization that rendered him a 'social animal' striving to conform to given – often authoritatively imposed – characterizations of virtue and the common good.⁷ This liberation made it possible for the individual to assert his own interests and to act upon his own freedom and equality, conceived as universal, reason-based, and...