Governing with the Charter: Legislative and Judicial Activism and Framers' Intent.

Graeme S. Mount is a history professor at Laurentian University and
author of Canada’s Enemies: Spies and Spying in the Peaceable Kingdom.

When constitutional talks followed the Quebec referendum of 1980, Saskatchewan Premier Allan Blakeney worried that responsibility for decision making might rest with judges appointed for life rather than with politicians vulnerable to political defeat. Blakeney recalled a U.S. judicial decision which, in the name of religious equality, obliged stores to remain open Christmas Day. Some Canadians now fear that the Supreme Court of Canada is a maker rather than an interpreter of laws, legalizing same-sex marriages and determining the conditions whereby Quebec can secede. In one recent federal election, a prominent Canadian Alliance candidate promised that a government formed by his party would use the “notwithstanding” clause frequently and without hesitation.

Kelly—an assistant professor of Political Science at Concordia University—addresses the concerns of Premier Blakeney and the Canadian Alliance candidate, without mentioning them specifically but while providing lists of specific cases. The authority of the House of Commons, Kelly agrees, has indeed diminished since the adoption of the Charter of Rights and Freedoms in 1982. Since then, Canadians have paid too much attention to the U.S. system of government, too little to precedents in such Commonwealth countries as the United Kingdom, Australia, and New Zealand. However, the problem really is that the executive (PMO, cabinet) has become so dominant and the rest of the House of Commons so enfeebled that the judiciary and electoral defeat are the only restraints upon a strong-minded government. Given, he says, that Canadians have a tradition of electing majority governments which remain in office a long time, it is important that the judiciary be there to limit government powers. Nowadays as they draft legislation, governments and bureaucracies examine the Charter to guarantee as best they can that the bill really will be constitutional.

Rarely does the Supreme Court become directly involved. Indeed, in more than half the cases considered by the Supreme Court of Canada between 1982 and 2003, the issue was police behaviour. Says Kelly, “Canadian democracy is not threatened when judicial activism requires the agents of law enforcement to respect the rule of law.”