Judges should feel "emboldened" to trump the written word of the Constitution when protecting fundamental, unwritten principles and rights, Canada's Chief Justice says.
Beverley McLachlin, in a speech delivered in 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 Judge 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."
In other words, the constitution and laws of Canada need no longer be subject to the inconvenience of plain meaning. These unwritten principles can be ever expanded beyond all relevance and logic to accomodate any political agenda, left or right.
Like the Red Queen, Madam Justice McLachlin believes that a word means what she wants it to mean. That is an attitude a future Tory government needs to combat, even if judicial reform isn't as catchy a topic as tax cuts.
The judiciary will set itself up as the political opponent of Tory government policy and use the unwritten principles to undermine it.
Count on it.