Vol. 14 No. 4 (April 2004), pp.280-283

CONSTITUTIONAL POLITICS IN CANADA AND THE UNITED STATES, by Stephen L. Newman (ed.).  Albany: SUNY Press, 2004.  282pp.  Hardcover.  $55.00.   ISBN: 0-7914-5937-3. 
   
Reviewed by Greg Marquis, History and Politics Department, University of New   Brunswick Saint John.  Email: gmarquis@unbsj.ca .
       
Can roughly similar liberal capitalist societies, both organized as federal states, sharing a border and enjoying close trade ties, experience similarities in constitutional politics?  Have Canada’s constitutional reforms of the early 1980s promoted a more individualistic, negative rights approach? Those are the big questions pursued by twelve scholars, including editor Stephan Newman. The answer, to varying degrees, is yes and no.  Since 1982, Canadian judges have assumed a greater role in defining individual rights, yet Canada’s constitutionalism continues to recognize group and social rights to a degree unknown in the United States.

For decades, Canadians,  particularly nationalists (Conservative, Liberal, social democratic), assumed that Canada’s constitutional development and future was distinct from that of the United States, where the courts traditionally have protected individual rights through a written constitution. Canada’s Supreme Court, aside from deciding on jurisdictional disputes between the national and provincial governments, took second place to the national parliament. Canada’s constitutionalism historically was marked by judicial restraint. The judicialization of politics with the advent of the Charter of Rights and Freedoms in the 1980s raised the inevitable issue of American-style judicial activism and “structurally induced convergence” (p.4) in constitutional law.

 The authors, reflecting the one-sided nature of comparative American-Canadian political, legal and historical scholarship, are mostly Canadian-based political scientists. The exceptions are Murphy, a Canadian-based law professor, Clancy, currently a private scholar, and Pollack, who teaches law, political science and legal studies in Delaware.  As the back cover boasts, the contributors handle complex issues in clear and easy to understand language,  accessible even to this reviewer, a mere historian. Seven essays focus on judicial activism and the rights revolution; the others examine comparative constitutional identity, constitutional interpretation, judicial review of legislation and constitutional amendment. The U.S. constitution has been amended only twice since the early 1970s; Canada’s was amended nine times between 1983 and 2001. 

Ideologically and structurally, Canada’s constitutionalism has differed from that of the United States. Because of its parliamentary system and distinct colonial development, Canada lacked constitutionally-protected fundamental freedoms and due process rights until 1982. Because of a long-standing lack of consensus on an amending formula, it secured control of [*281] its constitution only in the early 1980s. The British North America Act of 1867 was a British statute that could be amended only by that country’s parliament. Until 1949, decisions of the Supreme Court of Canada (SCC) could be appealed to the British Judicial Committee of the Privy Council, which for several decades following Confederation had tended to favor the provinces. The other major difference is the looser nature of Canadian federalism; by the 20th century Canada’s provincial governments were relatively more powerful than state governments and American constitutional politics had nothing equivalent to a “Quebec problem.” Even before it elected a separatist government in 1976, Quebec was challenging Canadian federalism and constitutionalism, refusing to be treated as simply another province.

If American constitutional politics often are viewed as a debate on founding principles, Canada’s experience seems looser and evolutionary. The patriated constitution and Charter of Rights and Freedoms of 1982, as this anthology explains, were attempts at countering Quebec nationalism with a broader Canadian nationalism. As recently at 1995, a separatist government in Quebec staged and narrowly lost a sovereignty referendum. This was in response to two failed attempts to placate Quebec’s constitutional worries, the Meech Lake and Charlottetown accords of 1987 and 1992.  Aboriginal rights, recognized in the 1982 constitution, also are an important part of Canada’s constitutional landscape. Court decisions, such as SPARROW (1990), DELGAMUUKW (1997) and MARSHALL (1999) addressed important issues such as aboriginal “title” to land not extinguished by Britain or Canada and the right to fish, hunt and harvest. On the political side, this new constitution was recognized in the creation in 1997 of the new self-governing Nunavut territory in the eastern Arctic. This lack of a strong national identity has implications for constitutionalism. Russell, in the book’s opening chapter, explores the concept of Canada as a “multinational state.” 

Pollack, Barazowski, Brodie and Morton explore similarities, or “convergence,” between
the two constitutional traditions, especially since 1982, when Canada acquired its equivalent of the Bill of Rights. Charter cases have resulted in important rulings on fundamental freedoms and due process rights.  Convergence is most apparent in the volume and success rates of negative rights rulings. American-style freedom of expression and commercial speech language has surfaced in pornography rulings and in a successful suit by tobacco companies that challenged public health legislation forbidding advertising of their products. The SCC struck down the Lord’s Day Act on the basis that it protected a specific religious tradition. And in Canadian cases American precedents are often cited. Inevitably, as during various periods in U.S. history, critics condemn judge-made law when its affronts their liberal or conservative sensibilities. The most dangerous argument for a democracy, as Barazowski explains, is that constitutional decisions should simply reflect majoritarian principles. He also reminds us of the work of “new institutionalist” scholars that suggests that the constitutional roles of legislatures and courts are not as distinct or watertight as court critics assume.

[*282] Contributions by Russell and Hirschl argue that Canadian constitutional politics are the result, not simply of abstract decisions of judges, but of Canada’s social and political realities. Hence the constitutional recognition or protection of group rights for minority language education groups, aboriginals and affirmative action programs. The U.S. Supreme Court, by contrast, has seriously eroded affirmative action programs on the grounds of equal protection. Clancy notes that, unlike the U.S. Supreme Court, which has supported affirmative action only when evidence of past discrimination is apparent, the SCC uses the test of present disadvantage (p.190). The process that produced the Charter of Rights was highly political, with resulting victories for official bilingualism in federal institutions and services, minority language education, aboriginal rights, multiculturalism and gender equality. In 1985, for example, the SCC forced the province of Manitoba to make French, as well as English, a language of the courts, the legislature, and published statutes and regulations, despite the fact that French-speakers represent about 5% of the population. Contrast this with the United States where 28 million Spanish speakers enjoy no such constitutional or court protections.  Successful constitutional challenges by groups that Morton and Brodie call outsiders-e.g., feminists, official language minorities, and homosexuals-have been supported by the federal government, which also financially supports various lobby organizations that take an active part in constitutional politics. According to Brodie and Morton, some disadvantaged groups are less disadvantaged than others.

 In the United States, constitutional protections (invalidating federal, state, or municipal laws), tend to enhance the individual, and the language of rights historically has focused on negative rights.  In framing the Charter in the early 1980s, Canada’s constitution makers inserted two counterweights to individual rights: Section 1 with its provision for “reasonable limits” on freedoms, and Section 33, the controversial “notwithstanding” clause that permits the federal and provincial governments to shield legislation from judicial review for up to five years. Although invoked by Quebec in the 1980s, this potential threat to individual rights has not been utilized in intervening years.

Newman and LaSelva discuss how freedom of expression in Canada has been tempered by the public interest. Hate speech and pornography have not been fully protected under the Charter, although the latter is now less likely to be judged on the basis of morality. Two post-Charter Canadian decisions of note are KEEGSTRA (1990) and BUTLER (1992). Keegstra was a teacher accused of spreading anti-Semitic messages. In a narrow 4-3 decision, the SCC ruled that the Charter’s freedom of expression section did not negate the Criminal Code’s hate propaganda section, although the content of Keegstra’s teachings, however objectionable, was protected as expression under the Charter.  Supporters hailed the ruling as a defense of Canada’s multiculturalism. BUTLER, which attracted the attention of American feminists such as Catharine MacKinnon and Andrea Dworkin, turned on “the concept of harm,” not free speech. Sexist pornography was deemed not immoral but harmful to women, [*283] whom the SCC protected based on the Charter’s equality provisions.  The decision did not stem the growth of commercial pornography, but it reminded observers that Canada’s constitution, unlike America’s, enshrines sexual equality.  Divergence also is visible in the current contentious social issue-gay and lesbian marriage. A Canadian prime minister, despite his or her personal beliefs, would never contemplate a constitutional amendment banning homosexual marriages.

The strength of this anthology lies in the multiple perspectives and useful historical, legal and political insights on the nature of constitutional politics in the two nations. Despite the attention given to important court decisions, constitutional politics are viewed as a broader process in Canada, involving parliament, the courts, and the provincial governments. There is also recognition of formal, as well as informal, constitutional practice. Greene cites Jefferson’s 1803 decision to purchase the Louisiana territory without the prior consent of Congress, thus establishing a precedent for the acquisition of new territories. Canada’s well-known intergovernmental agreements involving the federal and provincial governments are another example. There are also warnings about essentialism and universalism, assumptions employed by both free speech advocates, on the one hand, and feminists and advocates of hate propaganda laws on the other.  Comparative American-Canadian studies are a rarity, and usually created for consumption north of the border. The fact that CONSTITUTIONAL POLITICS was published by an American university press raises the hope that American scholars and students will become more open to comparative approaches. Judges may also take note. Hirschl argues that the U.S. Supreme Court “will have to reconsider its strict adherence to a Lockean-style anti-statist conception of constitutional rights in view of the vast racial, regional, linguistic, and economic disparities in U.S. society, as well as the large-scale demographic changes it is undergoing” (p.84).

CASE REFERENCES:

R. v. BUTLER, 1 S.C.R. 452 (1992).

DELGAMUUKW v. BRITISH COLUMBIA, 3 S.C.R. 1010 (1997).

R. v. KEEGSTRA, 3 S.C.R. 697 (1990).

R. v. MARSHALL, 3 S.C.R. 456 (1999).

R. v. SPARROW, 1 S.C.R. 1075 (1990).

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Copyright 2004 by the author, Greg Marquis