By Brian Bird, February 3, 2026
Is adding a bill of rights to the constitution of a country a recipe for judges to “legislate from the bench”? Is it possible for judges to neutrally interpret and apply bills of rights? Or must we resign ourselves to judges resolving these matters based on their own normative frameworks?
These interrelated questions have swirled around the Canadian Charter of Rights and Freedoms in the more than 40 years since it became part of the Canadian Constitution. The answers to these questions largely hinge on how we view the judicial role. Depending on whether judges are viewed as framers or guardians of the Constitution, the rest of the analysis takes a certain shape.
If judges are framers, they are entitled to robustly deploy their personal convictions on what is good, right, and true when they handle Charter cases. Judges, as framers, are – at least to some extent – empowered to continue the work of the actual authors of the Charter through managing the constitutional text as a “living” document that can be substantively adapted to the times in which we live.
But if judges are guardians, as they have described themselves in many cases, their initial impulse is to exercise restraint when they handle Charter cases. Their focus is on discerning what the text of the Charter means and giving effect to that meaning, even if they find that meaning to be contrary to what they personally consider to be ethically, morally, or philosophically correct.
How we understand the judicial role matters because the downstream consequences are significant. Our understanding of this role directly influences how legal disputes are decided. The Charter rulings of framer judges and guardian judges often diverge significantly.
Today, many Canadians appear to believe that judges should be framers of the Charter. As former Supreme Court Justice Rosalie Abella declared in a speech from 2018, a high court of a country serves as “the final adjudicator of which contested values in a society should triumph.” This comment can be tethered to the idea that judges in Charter cases should produce outcomes consistent with their own view of the good – especially when that view aligns with most Canadians’ opinions on the public policy issue engaged by a case.
This vision of how judges should handle the Charter is a far cry from what Bertha Wilson, another former Supreme Court Justice, called the “basic theory” of the Charter. This theory, Justice Wilson wrote, is that the state will “respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life.”
This vision of the Charter prizes tolerance and pluralism. It contemplates the constitutional text primarily as a shield from state overreach rather than a springboard for the judicial discovery of (unwritten) rights and freedoms through a tenuous connection to rights and freedoms that are written in the Charter.
Viewing the Charter as that sort of springboard – a view that flows from seeing the judge as a framer of the Charter – was likely at work when the Supreme Court held that the guarantee of “freedom of association” protects a right to collective bargaining or when the section of the Charter that includes a right to “life” was held to be the key to open the door to euthanasia in Canada. Whenever judges anchor a Charter ruling on an unwritten Charter “value” rather than a written “right” or “freedom,” there is a decent chance that framing has occurred in place of guardianship.
The arc of Charter jurisprudence and the popular understanding of the Charter among Canadians appears to have veered from the guardianship-oriented vision and has increasingly coalesced around the theory of Charter adjudication expressed by Justice Abella.
If that is true and we take that theory seriously, judges are empowered to discover constitutional entitlements under the Charter that require stretching the constitutional text or effectively amending it. Judges can also draw comfort in constitutionalizing these entitlements from the fact that they are today viewed by the majority of Canadians as rights – reflecting, as Justice Abella says, the values that have triumphed in our society.
Based on this understanding, it’s difficult to see much daylight between judges and legislators. This should concern all Canadians.
In fairness, it is true that judges must interpret and apply concepts in Charter cases that are open-ended and indeed, to echo Justice Abella once more, deeply contested. How can a judge possibly avoid normativity – deciding what, morally speaking, should be done – when asked to decide cases about fundamental freedoms, security of the person, equality, and cruel and unusual punishment?
Judges are not robots. They cannot be expected to park their moral worldviews at the courtroom door. In fact, I think most of us are rightly unsettled by judges who decline to bring their humanity to bear in this role. At the same time, in Charter cases, judges must resist the temptation of reflexively substituting their own understandings of concepts such as freedom and equality – or the understandings of these concepts held by most of the population today – for the legal understandings of these concepts that appear within the text of the Charter.
Judges should always start with what these concepts were understood to mean by the people who created the Charter. Judges should frequently interrogate themselves, asking whether they are deciding Charter cases based simply on their own vision of what is good, right, and true. Where a potential outcome in a Charter case has the air of adding a discrete right or freedom that is not already found in the text, judges should generally opt against it.
This approach to interpreting and applying the Charter resonates with what has been called the “Big M” approach outlined by the Supreme Court in the early Charter case of R. v. Big M Drug Mart Ltd:
[T]his analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be … a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore … be placed in its proper linguistic, philosophic and historical contexts.
Despite the important guidance provided by Big M on how judges should handle the Charter, the question persists: are judges permitted to engage in moral reasoning in Charter cases?
The protection of human dignity – an objective inescapably imbued with moral significance – often animates the decision to afford legal protection to the rights and freedoms included in a bill of rights. If this is accepted, it follows that judges must have some latitude to engage in moral reasoning when adjudicating Charter cases.
To those who object to this notion, many Charter rulings that they celebrate may at least in part be the product of moral reasoning. Whenever courts appeal to harm and dignity to justify their decisions in Charter cases, for example, moral reasoning is at work.
But the details of when and how judges ought to deploy moral reasoning in Charter cases is a difficult question to answer, especially in an age where moral relativism appears to enjoy significant influence over the notion of objective moral right and wrong. Even if we agree that judges can engage in moral reasoning in certain moments of a Charter case, how do we account for the fact that one judge’s moral convictions may diverge significantly from that of another judge?
Where the Big M approach to Charter cases does not resolve a specific case, judges will often have no choice but to engage in moral reasoning. An important caveat, however, is that where this exercise leads the judge to effectively discover novel rights and freedoms that are absent from the Charter, the judge must humbly leave the matter for the legislature to decide either through the enactment of ordinary legislation or constitutional amendment.
Perhaps the most important guardrail that will help judges to legitimately engage in moral reasoning in Charter cases is for them to view the constitutional text as something to be guarded rather than framed. We must reject the view of judges as framers of the Charter and recommit ourselves to the Big M approach, which largely reflects the idea of judges as guardians. I suspect that judges who view themselves as guardians – but who also exercise moral reasoning when necessary – will usually thread the needle.
In concert with endorsing the idea of judges as guardians, we must rediscover the raison d’être of the Charter – or, as stated in Big M, “the character and the larger objects of the Charter itself.” Justice Bertha Wilson gave voice to these matters when she described the “basic theory” of the Charter as essentially aimed at protecting pluralism and preventing state overreach.
But Justice Wilson does not suggest, in my view, that the Charter binds Canada to a normatively rudderless form of pluralism or a state that is powerless to enact laws that affirm human dignity or that aim to reinforce moral norms. In another Charter case, two other Supreme Court Justices wrote what could easily have been the next paragraph of Justice Wilson’s train of thought:
Canadians are permitted to hold different sets of values. One person’s values may be another person’s anathema. We see nothing troubling in this, so long as each person agrees to the other’s right to hold and act upon those values in a manner consistent with the limits of core minimal civil commitments which are necessary to secure civic order….
Above all, the Charter seeks to secure an ordered pluralism – a pluralism that respects human dignity – within the “free and democratic society” that is Canada. While the Charter is not a blank cheque for judges to instantiate their vision of the “good life,” and judges must take the Charter as they find it and not as they wish it to be, the reality is that judges must at times engage in moral reasoning to meaningfully decide Charter cases.
The task of judges in Charter cases is fraught with complexity. Judges do well to walk this tightrope with a well-crafted balancing pole in hand. On one end of this pole is a sound understanding of the judicial role in Charter cases, while on the other end is the mission of the Charter itself.
If we wish to be faithful to the Charter that we have been given, nothing less will do.
Brian Bird is a lecturer at the Peter A. Allard School of Law, UBC, and a contributor to the Macdonald-Laurier Institute.
