Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms.
Contains Bibliography, Index
-written six books in legal history
-nominated for the City of Toronto book Award
-practiced law for 32 years, lecturer at the University of Windsor
That the form of government in Canada has been revolutionized since the introduction of the Canadian Charter of Rights and Freedoms in 1982 seems beyond debate. This series of essays examines how it has changed. A selection of academics from across the country examine in detail Canada’s increasing judicial politics. The volume contains essays on how the Charter has impacted (or failed to impact) Aboriginal rights, how it forced the debate on same-sex marriage, and, more recently, how the Courts have balanced civil liberties in an age of terrorism.
While the book is written by academics for an academic audience, it is unfortunate that it is not directed at a larger community. For example, in the section on “Courting Controversy” the authors accept the notion that there is and should be a “dialogue” between the Supreme Court and Parliament and the provincial legislatures. They then conclude that, “Time and again, purely legal considerations fail to explain judgments.” That is, judges are not applying any abstract principles of law, but simply applying their own particular views of right and wrong.
The issues raised in this collection are fascinating; the authors point out how, as a result of the Charter, Canada has veered away from the normal paths of representative democracy. It is noted that our peers such as Britain, Australia, and New Zealand have all considered entrenching a Charter in their laws and have uniformly rejected the prospect. The end result is a decision such as the Supreme Court’s ruling in the RJR-Macdonald Inc. case in 1995, in which the judges struck down a federal law to control advertising of tobacco products. This law had widespread support and was seen as a necessary public health measure. However, the judges felt otherwise, and “freedom of speech” trumped the rights of the government to protect its citizens. In response, Parliament passed a watered down version of the advertising ban. There is a good argument to be made that Parliament had it right and the Court was wrong. Nevertheless, the judges hold the whip, and as Grant Huscroft concludes, “The Court did not just influence the democratic process; it dictated the content of the constitutionally permissible legislation.”
While the writers make occasional references to the historical antecedents of the Charter, this is largely beyond the scope of the work. Janet Hiebert does deal with the peculiar origins of the “notwithstanding” clause of section 33. This clause, which in limited circumstances permits a legislature to override the Courts, has seldom been invoked and it was, as she notes, “the result of raw politics” rather than any rational attempt at creating a national constitution.
One of the most significant essays is Guy Laforest’s comment on the Charter’s creation of the “internal exile” of Quebec. As he observes, “the Charter was adopted in an anti-democratic way without its (Quebec’s) consent.” Moreover, in its imposition of a centralized system, it stands in stark contrast to the recognition of the distinctive nature of Quebec that had prevailed from the Quebec Act of 1774 up to and beyond Confederation. As Laforest notes, while Canada has not unravelled in the succeeding three decades, the Charter has remained as a huge cleft in the body politic that may yet be the source of national division.
This collection is an interesting if sometimes overly academic view of what has become a beloved abstract to many Canadians, and to others a threat to popular control of social policy.