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A Interview with Justice Frank Iacobucci and Professor
Dieter Grimm, 2 J.L. & Equal. 197 (2003)
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Our first question concerns the concept of dignity. In the German Basic
Law, Article 1 protects "human dignity" and Article 3 protects
"equality." In Canada, our Constitution does not explicitly protect
dignity. Nevertheless, in Law v. Canada, Justice lacobucci stated: "In
the articulation of the purpose of s. 15(1) ... a focus is quite properly
placed upon the goal of assuring human dignity by the remedying of
discriminatory treatment. '
I Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at 530.
198 INTERVIEW: JUSTICE IACOBUCCI & PROFESSOR GRIMM FALL 2003
Justice Iacobucci: Our experience with this is a little more recent than the
German experience. The relatively underdeveloped nature of equality
jurisprudence is the result of two factors. First, the Canadian equality
provision, section 15, was delayed for three years after the Charter came
into effect in 1982. This was to allow the provincial and federal
governments to examine their statutes and to prepare themselves for when
that provision of the Charter came into force. Second, there was a delay
because-let's be honest-it's the most difficult concept, in my opinion, in
the Charter.
Equality to whom? Under what circumstances? What do we mean by it?
Is it anti-discrimination or is it something more than anti-discrimination?
What are the values to which we appeal when we talk about equality?
There is much debate in the literature as to what we mean by equality.
In our Court, there was quite a lot of debate about approaches to the
meaning of equality. In the early jurisprudence, there were different
views-three main views reflected by different groups of judges. This made
for a difficult beginning to a very challenging concept.
We say now that some consensus has been achieved. We are agreed
that it is substantive equality we are talking about. We talk about effects
rather than just facial differences in the law. With respect to effects and
substantive equality, we mean that to treat people who are dissimilar in
the same way could be unequal treatment. We have made some inroads
and attempts to try to consolidate and to synthesize these ideas, as in the
Law case. So, as with other areas in the law, you look for ways to express
concepts through the use of other words, and something that we fastened
onto in the equality context is the concept of essential human dignity.
Essential human dignity. What is it that is essential for the human
2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the CanadaAct 1982 (U.K.), 1982, c. 11 [Charter].
VOL. 2, No. 2 JOURNAL OF LAW & EQUALITY
Professor Grimm: I think you have to go ahead, because we are much less
a multicultural society than the Canadian one is.
Justice Iacobucci: There is a lot behind your question. First, I think that if
we were adding up the components of a free and liberal democratic
society, the independence of the judiciary would be front and centre,
along with the rule of law. And I do not think you can have the
independence of the judiciary without an independent legal profession.
Furthermore, I do not think you can have an independent legal profession
without academic freedom in law schools. So, these are all part of what we
mean by an independent legal profession.
The rule of law plays a central role in society, and lawyers are
instrumental in making the rule of law a reality, and not something just
on the books. It seems to me that the legal profession should be very
sensitive to being open and accessible; there should be, if you like, an
invitation to those from all parts of society to participate in the law.
It is a monopoly, the legal profession. In this country in the 1920s and
30s that monopoly, de facto, was largely the preserve of the rich. Only
those who could afford to be educated at the post-secondary level, and
more importantly, to go through clerkship, could become lawyers.
Therefore, it is extremely important today to ensure that the profession is
attracting people from all walks of life. This is important in terms of
demonstrating that our society is open and accessible. No matter what
your background, no matter what your sex, nothing is foreclosed. It is
merit, hard work, and a lot of luck, for sure. However, nothing in your
background should prevent your participating.
Equally, all aspects of the legal profession-the teaching side, the
practising side, and the judging side (if I can have three sides)-are more
enriched by increasing the number of backgrounds that have played a part
in that activity. For example, take my own activity, judging. I believe that
courts are enriched in this country-and I'm not going to make a
prescription for other countries-if they draw on different backgrounds, if
they draw on gender differences, if they draw on different kinds of
academic experience, and different kinds of practising experience. This is
not because we want to have constituencies-a female constituency, an
ethnic constituency, etc. Rather, for me, judging is a profession that draws
on one's learning, one's knowledge, and one's experience. The more you
can have a richness of experience, through diversity, the better, more
202 INTERVIEW: JUSTICE IACOBUCCI & PROFESSOR GRIMM FALL 2003
Professor Grimm: I fully agree with what you have said. Only the situation
between Canada and Germany is very different in this regard. We are
much less a multicultural country than Canada. Although contested,
Germany still does not consider itself as an immigration country. As a
result, considerable portions of the German population are aliens. The
biggest group is Turkish. Most of these aliens have not become German
citizens.
The lack of citizenship status excludes these people from all civil
service, because members of the civil senice must be German citizens.
Therefore, you will not find Turkish judges. However, you will find
naturalized people, in small but growing portions, in the legal profession.
This is because the first generation of aliens are mostly from the lower
strata of society. As a result, the second generation does not usually reach
the higher level of education. It is the third generation that will, and these
are the people who are now attending university. In addition, the numbers
of naturalizations are growing due to a considerable amendment of the
law. Therefore, I think the diversity of the legal profession will change in
the future.
With regard to gender, the German legal profession has achieved and
continues to achieve much success: the number of women in the judiciary
VOL. 2, No. 2 JOURNAL OF LAW & EQUALITY
Professor Grimm: History plays a very big role and it should be so. Most of
the differences in solutions that various countries find for the same
problem can only be explained by the history and cultural development of
the country. I am sure that without the background of the Holocaust, the
denial of the Holocaust would not have been made a crime in Germany,
and had it been made a crime, it would not have been upheld by the
Constitutional Court. I find it interesting that Canadian courts assume
the same approach. The Americans certainly would protect it under the
First Amendment. President Aharon Barak has stated that also in Israel,
he would certainly protect it.
3
1 BvR 23/94 (1994).
204 INTERVIEW: JUSTICE IACOBUCCI & PROFESSOR GRIMM FALL 2003
Justice acobucci: I agree with everything Dieter has said. I think that, in
many respects every rule of law, whether private law, statutory law, or
constitutional law, is in a way a reflection of the past, a norm for the
present, and an aspiration for the future. Law has this tri-dimensional
aspect, but primarily, it is to be regarded as a norm for the present.
Nevertheless, I do not think you can understand the present without an
understanding of the past, and you can't understand the future without
some understanding of the present. Today is the past for tomorrow, and
so history plays an important role in constitutional interpretation.
Why? Because our values, our belief in the role of the state is different
from that of the role of the state in the U.S. We have experienced an
evolution in our country, as opposed to a revolution. Without saying one
is better than the other-that's not the point-they are different from one
another. This difference in history produces a difference in attitude
toward the individual in society. In fact, differences in our attitudes
towards individualism exist within our country. The attitude towards
VOL. 2, No. 2 JOURNAL OF LAW & EQUALITY
Charles Taylor, Multiculturalism and The Politics of Recognition: An Essay (Princeton, N.J.:
Princeton University Press, 1992).
206 INTERVIEW: JUSTICE IACOBUCCI & PROFESSOR GRIMM FALL 2003
one can generalize on how this all works. One must examine the context
of perhaps an association of individuals that has decided, as a group, to
take action. We have some cases on this precise issue, for instance, trade
union membership, where the trade union wants to make a political
donation to a particular party that the union supports, but an individual
within that union does not agree.5 There is also the so-called clash of
rights, between freedom of religion and equality rights. That is another
manifestation of this sort of conflict within a group.
From our experience thus far, I think context is everything in trying to
approach such questions. Outcomes play out differently in different
contexts.
Justice acobucci: I think that firstly, one has to start with: what is the role
of judicial review in society? What is the role of a constitution in a society?
I agree with Dieter, who has written on this, that one does not need
judicial review for a democratic society.7 One can argue you do not need a
written constitution for a democratic society; England has no written
constitution.
I happen to think that it is preferable to have a written constitution,
and preferable to have judicial review. You need a constitution for a
federal state, full stop. You need not go beyond that-you have to have
something that says who does what, otherwise you are left with chaos.
5 See e.g. Lavigne v.Ontario Public Service Employees Union, [1991] 2 S.C.R. 211.
Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics
(Indianapolis: Bobbs-Merrill, 1962) at 18.
7 Dieter Grimm, "Constitutional Adjudication and Democracy" (1999) 33 Isr. L.R. 193.
208 INTERVIEW: JUSTICE IACOBUCCI & PROFESSOR GRIMM FALL 2003
ensure the provisions in the Civil Code accord with Article 3, which
protects equality, including gender equality.
Nothing happened in these three years. So the civil courts, who
decided family matters, had to ask themselves what they were to do with
these provisions. Are the inconsistent provisions null and void? Do they
remain? And what is the judges' role here? There was a strong idea that the
three-year period was dead letter law, because many judges were afraid of a
legal chaos if these provisions were simply gone.
Yet, the Constitutional Court confirmed that these provisions of the
Civil Code were no longer law. The Constitutional Court instructed the
lower courts to do what courts normally do when the legislature has not
acted: fill the gaps in the spirit of Article 3 of the Constitution. This
alarmed the legislature, and very soon, the gaps were filled. Had the
Constitutional Court followed the lower courts, the legislature might have
remained passive. I think that in this field, courts were more progressive
than the legislature and also more progressive than society in general.
This is not always the case; sometimes courts are more backwards. But
in matters of gender equality, the record of the German judiciary,
particularly of the labour courts, is not too bad. And the European Court
of Justice-the court of the European Union-was of great help. But courts
need a textual basis in the law. They may find more in the text than the
framers had in mind. But it is not their task to promote their own ideas of
social justice when they have found no expression in the law.