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A Interview with Justice Frank Iacobucci and Professor
Dieter Grimm, 2 J.L. & Equal. 197 (2003)

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VOL. 2, No. 2 JOURNAL OF LAW & EQUALITY FALL 2003

An Interview with Justice Frank


Iacobucci and Professor Dieter Grimm

In September 2003, Professor Dieter Grimm and Justice Frank Iacobucci


visited the University of Toronto Faculty of Law to teach an intensive
seminar course, along with President Aharon Barak of the Supreme Court
of Israel, on the role of the courts in reviewing the constitutionality of the
actions and laws of the elected branches of government. We are very
grateful that they set aside some time to sit down with Senior Editors
Joanna Erdman, Chris Essert, and Maryth Yachnin for an interview.
Professor Dieter Grimm served on the Federal Constitutional Court of
Germany for 12 years and is now Professor of Law at Humboldt
University of Berlin. He is the Rector of the Wissenschaftskolleg zu Berlin
(Institute for Advanced Study). He also teaches constitutional law at New
York University Law School and Yale Law School. He is co-editor of
several law reviews, including I o CON (The International Journal of
Constitutional Law).
Justice Frank lacobucci of the Supreme Court of Canada is a former
professor and dean of the University of Toronto Faculty of Law. He has
also served as Vice-President and Provost of the University of Toronto, as
well as Deputy Minister of Justice and Deputy Attorney General of
Canada. He was Chief Justice of the Federal Court of Canada from 1988
until 1991, when he was appointed to the Supreme Court of Canada.

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

While the German Basic Law expressly empowers courts to enforce


the state's duty to protect and respect human dignity, the Canadian
Charter 2 has no such express authorization. How has this difference
affected the jurisprudence in your respective countries? Furthermore,
what is the nature of the interaction between dignity and equality? How
do these rights relate to each other?

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

condition in terms of dignity? It is not something that is superficial; it is


not something that is highly subjective.
Through the guidance of the equality provisions themselves, the
enumerated grounds, we see that essential human dignity refers to
something that is personal, one's persona: his gender, her gender, his race,
her race. All of these qualities, for us on the Court, go to the question of
dignity.
So we have started with the equality provision, and developed the
concept of dignity through this provision. Others would say, well, when
the Germans use it or the Israelis use it-as you know, they use dignity in
the Israeli constitution as well-they use dignity as a launching pad to
equality. Their basic law does not use equality; rather they use dignity as a
way of making progress in what they believe is equal treatment. Our
Canadian equality jurisprudence is a work in progress in a very real way,
and further refinements will undoubtedly help it evolve.

Professor Grimm: Let me begin with dignity. The German Constitution


was the first constitution, as far as I know, to use the notion of dignity. As
a matter of fact, the text starts with a guarantee of the inviolability of
dignity. This can be explained by what antedated the Constitution: the
Nazis and the Third Reich with its complete neglect of dignity and of
human rights. This was the reason that dignity was included in the
Constitution. The notion as such existed before 1949, but not as a legal
notion. In view of the Nazi past, the authors of the Constitution
transformed it into a legal notion, and it was with reason placed at the
beginning of the whole Constitution.
Most German academic writers think that the inviolability of dignity is
not a civil right in itself, not a subjective individual right. Rather, it is the
objective basis of all the other rights. All civil rights are considered to be
an expression of dignity. However, there is a minority that believes dignity
to be the first fundamental right, followed by the others. It resides on the
same plane as all civil rights, and does not occupy a different level. This
difference has not been resolved, and the Constitutional Court has not
taken a stand in this division of ideas. However, when all the other civil
rights are viewed as a concretization or expression of dignity, dignity
consequently functions as a guiding principle for the interpretation of
these other fundamental rights.
200 INTERVIEW: JUSTICE IACOBUCCI & PROFESSOR GRIMM FALL 2003

This is the position adopted by the Constitutional Court. It is inspired


by the notion of dignity when it interprets the other fundamental rights.
This means that all fundamental rights contain an element of dignity.
From time to time, one can read that only some rights are an expression of
dignity (for instance, privacy rights), whereas others have no connection,
or a less intensive one, with dignity. This understanding would be wrong:
every fundamental right is an expression of dignity.
When dignity is understood simply as one right like all the others in
the bill of rights, it becomes subject to limitation and balancing. However,
the general understanding is that dignity is not subject to limitation or
balancing. That is to say, an infringement of dignity is at the same time a
violation. Yet, there are some voices that have begun to question this
doctrine. Emerging methods of generating or prolonging life through
biotechnological measures have brought the issue of limitations on dignity
into dispute.
Certainly equality is one of the most important concretizations and
expressions of dignity. Article 3, the constitutional equality provision, has
three parts. First, the general section states that everyone is equal under
the law. The second section provides for equality of gender. The final
section contains enumerated anti-discrimination clauses. Recently, there
have been two important amendments to this article. The second section,
equality of gender, was amended by a subsection obliging the state to
promote real equality in situations as opposed to mere equality in law. We
can say that the latter form of equality has been reached over time;
however, we still have differences in social situations. Therefore, the state
is expressly entitled to act so as to create equal social situations between
men and women. The second amendment added the disabled to the anti-
discrimination clause.

Justice lacobucci, in addressing the first-year class at the University of


Toronto, you stressed the importance of an understanding in the legal
community of diversity, of the role that law plays in the lives of Canada's
diverse peoples. First, how important is the diversity of the bar to
furthering equality rights? More specifically, does the identity of judges
and the racial, class, and gender composition of courts affect the law's
ability to understand the subjective experience of oppression?
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

effective, more enlightened, more sensitive, and more compassionate, and


I think ultimately the wiser, that court will be. This is because in so much
of what we do, as Dieter so nicely presented in one of our classes by the
drawing of a triangle, legal issues are interpreted by reference to text,
context, and reality. That is what backgrounds do: they bring different
perspectives onto issues. However, your experience, as a judge, should not
force you to prejudge issues that you may have experienced in another
setting. Our experiences, for instance, my ethnic background, or Dieter's
professional teaching career, should serve to enlighten issues and to enable
us and others to better grasp varied understandings. When you put that all
together, we can learn from each other.
The final issue is one of tolerance. The more we can interact with each
other, the more tolerant we become. By that statement, I do not mean just
passive, or reluctant acceptance. Rather, we willingly accept differences.
That's what makes this country so exciting-the potential for tolerance on
a really meaningful basis.

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

is growing. Thus, the highest court-the Constitutional Court-consists of


16 judges, five of whom are women.
In general, I would like to stress what Justice acobucci has already said.
There is sometimes a very crude idea of what the individual features of a
judge mean for the judgments. For instance, it is thought that when you
have children, and it comes to family questions, you will decide in favour
of family and against singles. When you are Black and faced with a racial
question, you will decide in favour of Blacks. When you are Catholic, you
will vote against abortion. This is much too simple. Constitutional law
and legal method matter.

Another issue that arises in the assessment of the subjective experience


of oppression is the role of history and historical understanding. Justice
Iacobucci, you set out in the Law case that historical oppression and
discrimination are important considerations in determining whether
differential treatment violates human dignity. Justice Grimm, you stated
in the Holocaust Denial Case3 that the Federal Court of Justice did not
err in establishing a link between the Holocaust and the attack on the
human dignity of Jews currently.
How do judges understand the impact of historical oppression on the
subjective experience of oppressed peoples? Is judicial understanding
based on claimants' views, historical research, or other factors? Where
do you look for that kind of understanding?

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

The value of history, then, is great. Its importance is especially


emphasized in a time where much export and import of legal systems takes
place. Many of the countries that freed themselves from dictatorships
import texts from other legal systems for various reasons. Sometimes it is
because they have poor traditions, and sometimes it is simply because they
think that they will receive a more friendly reception in the international
community. What one witnesses in this exchange is that, although the text
remains unchanged, it works completely differently in another historical
and cultural setting. This factor must always be taken into account.
For myself, legislative history is very important for the interpretation of
statutes and constitutions. I find this especially true when deciding
questions of how we should deal with social change. Laws react to
situations or problems existing at the time of enactment. The law is
designed to pursue a certain aim under a given condition. Therefore,
when social change occurs and the original interpretation continues to be
applied, detrimental effects can be produced. The law may become
dysfunctional. Hence, when I interpret constitutional provisions or
ordinary laws, it is always very important to determine the context in
which the law originated, and to investigate whether the segment of reality
to which the law is addressed has changed, and whether the purpose of
the law requires a new understanding of the text. These are the two areas
where, for me, history is important.

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

collectivity, I think, is quite different in Quebec from other parts of the


country. There is a profound attachment to one's culture and language for
the French-speaking minority vis-A-vis the rest of Canada. These attitudes
are the result of certain historical differences, which cannot be ignored
when applying the law.

The presence of Quebec in Canada, and its impact on the meaning of


equality, relates directly to our next question. The work of Canadian
philosopher Charles Taylor deals with different theories of equality. 4 On
the one hand, he presents the "Politics of Equal Dignity", which is the
traditional enlightenment view of equality: treat everyone the same,
with the requirement that laws should be blind to the differences
between people. On the other hand, he presents the "Politics of
Recognition", which is a more collectivist, group-based version of
equality.
Taylor uses Quebec as his example of the differences in his theories
of equality. For instance, a certain conception of equality might require
that, if the people of Quebec are to be treated equally as a whole, some
reference must be made as to how that society is organized. This is also a
consideration that is becoming more relevant in Europe, as the
continent integrates and different cultures come together. How should
the courts balance these two conceptions of equality, especially when the
individual conception might conflict with the group idea of equality?

Professor Grimm: First, the answer to your question is rendered more


difficult by the procedural rules of the German system. When it comes to
fundamental rights, litigation can only be brought by individuals.
Therefore, it is sometimes difficult to bring the group aspect into the
dispute, although very often, the individual problem presented in court is,
in reality, a group matter.
For instance, a frequently litigated issue is that parents of Islamic
daughters request an exemption from physical education. This is because
participation requires their daughters to expose themselves in a manner
that conflicts with religious rules. This comes to the court as an individual
complaint, but it is a matter that concerns the whole group. But the

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

procedural rules make it more difficult to address group equality. We do


not have a class action or group action in Germany. Moreover, the
Constitution is framed in terms of individual, not group, rights. As long as
this is the case, it is up to the courts to be aware of the fact that the
conflict before them is truly a cultural conflict, not an individual conflict.
The most important problem that I see relates to a group requiring or
using its fundamental rights to group identity to suppress the freedom of
individual members of the group. This is particularly problematic when
the conflict relates to very essential principles of a society. To what degree
can we allow fundamental rights to be used in order to preserve the
identity of the group at the expense of a suppression of individual
members of the group? This is the basic conflict. In my opinion, we have
to be much more restrictive in this type of case than in cases where
members of a minority group claim an exemption from general obligations
for religious reasons.
There can certainly be no consent to a deprivation of dignity, physical
integrity, etc. Very often, gender equality is the test case for this conflict.
Groups want to use their right to a group identity to uphold traditional
forms of female inferiority. For me, this is not permissible on the territory
of a country where gender equality stands as one of the most important
constitutional principles.
This is a typical conflict and it is difficult at times to decide where the
line should be drawn. However, I think that one has to draw the line.
Sometimes one may succeed in reconciling different cultural traditions or
religious beliefs. Other times, the choice is between adapting oneself to
certain fundamental principles of the country or living elsewhere.

Justice acobucci: To follow up on what Dieter is saying, in our Charter,


some rights do appear to be both group and individual rights: for instance,
language rights, as provided in section 23 of the Charter. This section
provides for English instruction in a French-speaking area where numbers
warrant. An individual can invoke the right; however, it is invoked
because the individual is a member of a group. This right can be enforced
against the government. This is similar in some aspects to equality rights;
it is as a member of a particular minority that the individual acts to
enforce a claim.
I agree with what Dieter said, but I would add this: it is helpful to
think of the context within which these conflicts arise. I am not sure that
VOL. 2, No. 2 JOURNAL OF LAW & EQUALITY

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.

Our final question relates to the relationship between equality rights


litigation and the role of the courts in a liberal democracy. According to
a prevalent critique, the judiciary, with respect to its constitutional
review of duly enacted legislation, is regarded as a "deviant institution in
[a] democracy." 6 However, even the harshest critics of judicial activism
acknowledge the necessary role of the courts in protecting the rights of
minorities and stemming the tyranny of the majority. Social science
evidence indicates that public support for a constitutional court's role in
a liberal democracy is strongest when the court ensures the principle of
equality. What are your thoughts on this debate?

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

But, as I said, I think it is preferable to have both a written constitution


and judicial review. Now, at the time of formation of federalist structures
in the United States, there was thought given to maybe having another
body-maybe even composed of judges-to interpret the constitution. It
would have been a special chamber, but then there was no agreement
about who would be on it and who could be independent in that
chamber-there would always have been some connection with one level of
government, or some involvement in one way or another. So, they looked
to the judiciary to play that role.
Our Court has said, on a number of occasions, that the components of
democracy include, among other things, respect for minorities. We said
that in the Secession Reference.' The fact that we say it does not mean it is
true in every respect, but we, as judges, think that it is. I believe the court's
interpretation in the equality jurisprudence has been consistent with the
belief that respect for minorities is fundamentally part of a Canadian
definition of democracy, because majority rule is necessary but not
sufficient.
In my view, majority rule is a core principle of the wheel of democracy,
surrounded, if you like, by a number of spokes that are quite important.
The spoke of respect for minorities seems to be part of what we Canadians
believe is a democratic state. And the judiciary's role in recognizing and
affirming its respect for minorities in society is important.
Most Canadians accept this. They may not like the outcome of a gixen
decision-and we all debate outcomes of gixen decisions-but they accept
the role of the courts in making decisions as part and parcel of a body that
tries to interpret equality rights in a way that respects the minorities of our
society.

Professor Grimm: The recent legal history of Germany is a good example


of the importance of courts in this field, equality, and gender equality in
particular. The Civil Code was worked out in the nineteenth century. At
that time, a very different picture of family life and of male-female
relations existed. The Civil Code was filled with provisions-especially in
family law and inheritance law-particular to that time frame. The
Constitution dates from 1949 and contains a clause stipulating that from
the date of the Constitution's adoption, the legislature has three years to

8 Reference re Secession of Quebec, [1998] 2 S.C.R. 217.


VOL. 2, No. 2 JOURNAL OF LAW & EQUALITY

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.

Thank you very much.

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