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.
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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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.