Vol. 5 No. 1 (January, 1995) pp.20-25
COURTS AND COUNTRY: THE LIMITS OF LITIGATION AND THE SOCIAL AND
POLITICAL LIFE OF CANADA by W.A. Bogart. Toronto, New York and
London: Oxford University Press, 1994. 334pp. Paper.
Reviewed by Roy B. Flemming, Department of Political Science,
Texas A&M University
In 1982 a natural experiment in legal change began in Canada when
Prime Minister Pierre Trudeau, pursuing both personal and
political aims, succeeded in appending a Charter of Rights and
Freedoms to Canada's patriated constitution. The British North
American Act of 1867, which established Confederation, dealt
primarily with the division of powers between the country's
federal and provincial governments. The Charter transformed this
"governments' constitution" into a "people's
constitution" (Cairns 1991). Within a decade the Charter of
Rights and Freedoms, according to Russell (1992, 35), had become
"a major factor in Canadian public life" and while the
media and academic journals were soon "stuffed with Charter
chatter," much of it approving, acclaim for the Charter has
never been universal.
Many politicians and academics greeted it with caution,
ambivalence, or denunciation. As experience with the Charter and
research of its effects have accumulated, the number of
"Charter skeptics" (Knopff and Morton 1992) drawn from
both the political right and left appears to have grown. With
COURTS AND COUNTRY, W. A. Bogart, a law professor at the
University of Windsor, joins the ranks of these skeptics. After a
sweeping survey of litigation and the role of the judiciary in
Canada, Bogart concludes the Charter was a "mistake."
In reaching this conclusion, Bogart pulls together the objections
of the right that the Charter threatens to strengthen the role of
judicial review at the expense of representative government with
accusations from the left that the Charter will fail to meet the
aspirations for equality expressed by the disadvantaged and
marginalized. Bogart's principal contribution to the debate over
the Charter is his effort to broaden the debate's scope to
include areas of the law outside the Charter's boundaries. He
thus addresses the larger problem of not just the Charter's
actual impact regarding social reform and the balance between
parliamentary and judicial powers but the effects that an
emergent political discourse framed in terms of rights, a
possibly growing reliance on litigation as a means of social
change, and more generally the "juridicalization of
politics" (Shapiro 1994) might have on the vitality of
Canada's democracy.
Bogart organizes his book into four parts. The first part is a
chapter that sketches in quick strokes Canada's diverse political
cultures, regional and linguistic differences, ambivalent
identities as a nation and people, traditional deference to
authority, and an economy in which until recently competition has
been muted and government involvement welcomed. The chapter's
dominant theme is that Canada's "variegated ideology"
fostered a "pragmatic and empirical" politics that
historically has encouraged the accommodation and compromise
required to preserve Canada's unity and which has been
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needed to attain the constitutional ends of "peace, order,
and good government." This variegated ideology, mixing in
unequal proportions the founding fragments of classical
liberalism and Toryism with later elements of social democracy,
colored the content of the Charter of Rights and Freedoms so that
liberalism's individualism, the dominant fragment, was mitigated
by the absence of property rights and offset by the inclusion of
group rights and affirmative remedies that reflected Canada's
communitarian or collective values. The Charter thus appears to
have created opportunities for progressive forces to use the
courts to promote these values.
No opportunity is without risk, however. Bogart fears that the
Canadian judiciary is an unreliable ally for progressive causes
and that pursuing a rights strategy through the Charter may erode
the communitarian seam in Canada's public philosophy that has
made its politics responsive to social democratic demands. He
introduces his general concerns in two chapters that make up the
second part of the book. The first chapter draws heavily from the
American literature to underscore the problematic impacts of law
reform (e.g., Handler 1978) and of high court decisions (e.g.,
Rosenberg 1991) in order to question popular beliefs in the power
of litigation and courts as levers for social change. The second
chapter focuses on the structure of litigation, its liberal
individualist underpinnings which weaken it as a platform for
social or political reforms, and the spotty record of Canada's
courts and legislatures regarding expanded notions of standing,
class actions, interventions, remedies, and costs that would
redefine the cramped structure of the traditional model.
In these chapters Bogart presents the equivalent of a Catch 22 to
define the limits of litigation in Canada. If the pursuit of
progressive causes through the courts fails or produces little
more than ambiguous or modest results, as Bogart believes the
American experience shows, then the Charter of Rights and
Freedoms is a chimera and litigation a fool's errand for
minorities and the marginalized. If, however, litigation does
succeed, its price may be pernicious for democratic politics in
Canada. By turning to the courts to resolve major issues and
learning to live with an expansive judiciary, Canadians may
develop a "habit of mind" that expects little of
politics. A Gresham's Law, Bogart seems to suggest, links
litigation and politics in which faith in law and the courts
drives out confidence in democratic participation, thus sapping
the political will of the vitality required to resolve
contentious issues. Bogart, in essence, takes the
"neo-realist" critique which focuses on the
questionable and limited benefits of litigation and combines it
with "structuralist" criticisms that argue that
litigation weakens or diverts progressive movements (McCann 1994)
to create a synthesis that redefines and broadens the terms of
the debate over law and courts in Canada.
The book's third and longest part provides the substance for
Bogart's argument. In six chapters Bogart ranges across the legal
landscape, surveying at various points the judiciary's role in
Canada's administrative state, the fate of women's issues and
abortion in the courts before and after the Charter, the
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debate over tort and no-fault regimes in Canada, the drift toward
the due process model in criminal law under the Charter, the
courts' changing role in federal relations since Confederation,
and, finally, equality litigation and aboriginal rights under the
Charter and whether the Charter is judicializing Canadian
politics. Bogart arranges these chapters like a fugue in that
each chapter has a similar format which is then repeated in more
or less contrapuntal fashion. Two contrasting models or
perspectives are introduced; Canada's location or movement
vis-a-vis the models is considered; the research and arguments
about the Charter's impact or effects of court decisions are
weighed; then Bogart closes the discussion by pointing to the
risks of blindly accepting the mystique of the law, courts, and
Charter.
An example of this format is the chapter on criminal law. Bogart
uses the due process and crime control models to frame his
discussion of how Canada's Supreme Court through the Charter has
applied the exclusionary rule with uncertain results and how the
Court's ruling on delay prompted a political uproar when over
40,000 criminal charges were dismissed in Ontario. In wrapping up
this discussion Bogart proceeds to ponder the premonitions
American research raise about the elusive effects of the Warren
Court decisions and what a similar "due process
trajectory" might mean for Canadian politics and the
problems Canada's high court creates when it cloaks itself in the
mantle of policy maker to make broad, far-reaching decisions
transcending the immediate issues of the cases it is deciding.
The leit motif of this third part is that Canada's courts, unlike
its legislatures, historically have not been especially
hospitable forums for progressive causes and that even when the
courts act favorably the success is short-lived or offset by
unanticipated consequences.
In his concluding chapter and the book's fourth part, Bogart
worries that despite this historical record Canadians,
particularly the powerless and marginalized, will be drawn to the
courts by the allure of litigation and charms of the Charter
expecting to find "shelter in a forum that will respond to
their pleas." These hopes, he fears, will "stumble over
reality." In his estimation experience and research fail to
show the "courts have ever been responsible for long-lasting
and effective social or political change." He later
postulates that "if it is the case that the more we
judicialize fundamental social and political questions, the more
we enervate politics, then it is also likely that the more we
limit the judiciary, the more politics will need to respond to
the discontents that make recourse to the courts seem so tempting
or at least necessary." His solution is to shove the
litigiousness genie back into a common law bottle that confines
the judiciary to the "core functions" of courts. If
courts only make as much law as needed to resolve disputes and
this law can be changed or overturned by legislatures, the perils
of substituting litigation for politics might be avoided.
The tools for making this solution, ironically, seem at hand in
the Charter itself where section 33 gives Canada's legislatures
the authority to override court decisions and section 1 balances
rights and freedoms against the justifiable limits of a
democratic society. Section 33, however, soon fell into deep
disfavor in English-speaking Canada after
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Quebec used it to block a Supreme Court language decision.
Efforts to restore the section's good standing, given the extent
to which rights talk has permeated Canada's political
consciousness, might be interpreted as an attack on judicial
independence, a central tenet of the new legal culture taking
root in Canada. Section 1 simply creates a "Charter Two
Step" in the Supreme Court's deliberations while failing to
check the Court's interpretative leeway (Knopf and Morton 1992,
35-60).
Another difficulty that is unrelated to the Charter is the
contradiction between Bogart's urging that the traditional model
of litigation be revamped to make it more inclusive and
accessible, which would increase its attractiveness as a social
reform strategy, and his concern that Canadians increasingly
place problems before the courts that would be best left to the
legislatures. Bogart offers additional suggestions, which echo
proposals made by other Charter skeptics (e.g., Beatty 1990),
such as making the Supreme Court more representative, involving
Parliament in the selection of judges, and reforming Canada's
Senate, but they have the appearance of being intended to prompt
discussion; they are not discussed in detail nor are they
integrated into the book's argument in convincing ways.
Bogart wrote his book to caution Canadians about the dangers of
broadening and deepening the judiciary's role in settling major
political questions and of giving courts final say over
constitutional matters that can only be overcome by
constitutional amendment. It is not surprising then that the book
has a polemical flavor. One major limitation is that Bogart did
not collect fresh information to support his argument; he offers
no systematic evidence on litigation trends or on changes in
political participation, two empirical phenomena relevant to his
thesis, and he provides no measures of how juridicalized Canadian
discourse has become since the Charter, relying instead on
academic opinions and anecdotes from the media. The book's
foundation rests on the ground covered by the published
literature, an understandable site given the book's breadth but
also one that is not entirely secure. Bogart acknowledges this
problem several times in his discussion and points to the limited
social science research in Canada dealing with such matters as
alternative dispute resolution, administrative tribunals,
abortion, tort, prison litigation, and even recent court
decisions involving federalism.
A second limitation is the absence of any description of the
institutional features of Canada's legal system and only
scattered remarks about its dynamics. This becomes a problem for
readers unfamiliar with the country but the larger issue for all
readers is that the legal system simply becomes a "black
box" in Bogart's analysis. Perhaps a brief example will
illustrate the problem. Seats on the Supreme Court are
apportioned on a regional basis (which Bogart does not mention)
to reflect Canada's major political cleavage, and the justices'
decisions reflect their provincial origins (Tate and Sittiwong
1989). Bogart's suggestion that the bench be made more
representative means either that this longstanding practice must
be dropped thus exacerbating regional tensions, or the new
justices would continue to be selected on a regional basis but
with expectations that
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their decisions would reflect not provincial perspectives but the
interests of their gender or ethnicity, a potential double bind
for the justices and a further complication of Canada's
cross-cutting cleavages. Bogart also does not consider that
Ottawa could apply the brakes to judicial activism and discourage
Charter litigation through its appointments to the federal
courts. Bushnell's (1992) study of Canada's Supreme Court, a
"captive court" long bound by a restraintist tradition
before the Charter, is a reminder that the country's courts are
very much what the governments of the day want to make of them.
Bogart's argument, however, has a larger problem, and it has two
aspects. First, his book can be read in terms of the emerging
literature dealing with "institutional choice" (Komesar
1994). Bogart turns repeatedly to the question of whether the
Charter and attitudes about litigation have tipped the balance
between courts and legislatures as institutional alternatives
with the consequence that courts now deal with problems they are
inherently incapable of solving efficiently or effectively. Aside
from the need to show that this is indeed what is happening in
Canada, Bogart fails to struggle with the problem of identifying
the criteria that would define the optimal balance between
litigation and politics as ways of resolving disputes or pursuing
particular societal values. It could be countered that Bogart's
recommendation that the courts return to a common law function
approximates a solution to this problem. Yet, his solution
harbors a static conception of the relationship between courts
and litigation; it begs the question of whether and how the
solution could be kept in place. It is here perhaps that the
book's polemical purpose gets in the way of its theoretical
development. The second aspect of this larger problem is Bogart's
pessimistic view of rights talk and the juridicalization of
Canadian political discourse. Recent studies by McCann (1994)
focusing on the movement for pay equity and by Melnick (1994) on
welfare rights in the United States strongly indicate that
labeling claims as rights offers politically weak groups
considerable leverage in common law settings similar to Bogart's
solution where courts cannot trump legislatures. Equally
important are the findings that litigation is rarely pursued to
the exclusion of other political activities and that the two
strategies can be complementary.
REFERENCES:
Beatty, David M. 1990. TALKING HEADS AND THE SUPREMES: THE
CANADIAN PRODUCTION OF CONSTITUTIONAL REVIEW. Toronto: Carswell.
Bushnell, Ian. 1992. THE CAPTIVE COURT: A STUDY OF THE SUPREME
COURT OF CANADA. Montreal: McGill-Queen's University Press.
Cairns, Alan C. 1991. DISRUPTIONS: CONSTITUTIONAL STRUGGLES, FROM
THE CHARTER TO MEECH LAKE. Toronto: McClelland & Stewart.
Handler, Joel F. 1978. SOCIAL MOVEMENTS AND THE LEGAL SYSTEM: A
THEORY OF LAW REFORM AND SOCIAL CHANGE. New York: Academic Press.
Knopf, Rainer and F. L. Morton. 1992. CHARTER POLITICS.
Scarborough, ONT:
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Nelson Canada.
Komesar, Neil K. 1994. IMPERFECT ALTERNATIVES: CHOOSING
INSTITUTIONS IN LAW, ECONOMICS, AND PUBLIC POLICY. Chicago:
University of Chicago Press.
McCann, Michael W. 1994. RIGHTS AT WORK: PAY EQUITY REFORM AND
THE POLITICS OF LEGAL MOBILIZATION. Chicago: University of
Chicago Press.
Melnick, R. Shep. 1994. BETWEEN THE LINES: INTERPRETING WELFARE
RIGHTS. Washington, D.C.: Brookings Institution.
Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING
ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.
Russell, Peter H. 1992. "The Growth of Canadian Judicial
Review and the Commonwealth and American Experiences." In
COMPARATIVE JUDICIAL REVIEW AND PUBLIC POLICY, ed. Donald W.
Jackson and C. Neal Tate. Westport, CT: Greenwood Press.
Shapiro, Martin. 1994. "The Juridicalization of Politics in
the United States." INTERNATIONAL POLITICAL SCIENCE REVIEW.
15:101-112.
Tate, C. Neal and Panu Sittiwong. 1989. "Decision Making in
the Canadian Supreme Court: Extending the Personal Attributes
Model across Nations." JOURNAL OF POLITICS. 51:900-917.