Emerging Constitutional Norms: Continuous Judicial Amendment of the Constitution. The Proportionality Test as a Moving Target

Abstract

INTRODUCTION If "constitutions are what judges say they are," to paraphrase Kannar,l then it does not only follow that "it matters who is talking," but also that we must accept, as other consequences, that constitutions will change not only when judges change, but also when judges change their minds. This is not news in the United States, where legal realism and its contemporary variations have unquestionably led the constitutional theory and interpretation for more than half a century. But it is not a statement that most Canadian constitutionalists, even the realists among them, would have, until recently, held to apply to the same degree or with the same accuracy to the Canadian constitutional scene. However, given the rigidity of legislative modes of amendment, especially in Canada, 2 the indirect judicial modifications to the Constitution that can now be implemented through the application and interpretation of the Charter may very well be the most important ones to which the Charter will ever be subjected. Of course, the Constitution in Canada, like constitutions everywhere else, has always been thought of as a text of some permanence, one that must nevertheless evolve with times and mores if it is to remain functional under changing circumstances. The functionalist approach to constitutional interpretation has done nothing more than take this notion into account and give it the status of first principle. Under closer scrutiny, that kind of constitutional evolution may be seen as the proverbial living tree, albeit a tree living in an English garden, where nature is helped by benevolent hands and