The Myth of the Sacred: The Charter,the Courts, and the Politics of the Constitution in Canada.

Vol. 14 No. 8 (August 2004), pp.655-658

THE MYTH OF THE SACRED: THE CHARTER, THE COURTS, AND THE POLITICS OF THE CONSTITUTION IN CANADA, by Patrick James, Donald E. Abelson, and Michael Lusztig (eds.). Montreal and Kingston: McGill-Queen’s University Press, 2002. 280pp. Cloth CA$75.00 / US$75.00 / £54.00. ISBN: 0-7735-2434-7. Paper CA$27.95 / US$27.95 / £21.50. ISBN: 0-7735-2435-5.

Reviewed by David L. Weiden, The Docking Institute of Public Affairs and Department of Political Science, Fort Hays State University. E-mail: dweiden@fhsu.edu

THE MYTH OF THE SACRED presents a varied and eclectic collection of articles on the Canadian constitutional process. The reader will find empirical analysis, doctrinal work, political theory, and game-theoretical perspectives on Canadian judicial politics. Although some could argue that this diversity leads to a less than coherent collection, I would suggest that the book represents a healthy multiplicity of scholarly approaches to the study of the Canadian judiciary. Indeed, this book is a very worthwhile volume not only for those interested in the Canadian constitutional system, but also for scholars engaged in the general study of comparative judicial systems. A number of articles in the book address issues not often found in collections of this type: Abelson discusses the role of think tanks in the Canadian constitutional process, Kelly examines the complexity of judicial activism, and Smithey analyzes interest group influence in a landmark Supreme Court case. These articles and others collectively provide an engaging examination of Canadian judicial and constitutional politics.

The central construct of the book involves challenging what the editors call “the myth of the sacred”—the emergent popular belief held by most Canadians that the Charter of Rights and Freedoms is beyond politics and political stratagems. The contributors to the volume, to a greater or lesser degree, dispute this view, and seek to explore the implications of a more realistic account of the Canadian constitutional process. If I have any criticism of this volume, it is that the “myth” construct is not well developed in the introductory essay by James, Abelson, and Lusztig. If the “myth of the sacred” is to be seen as more than just a straw man, then a fuller explication is necessary. Given the heated criticism of the Supreme Court after its controversial gay rights decisions in VRIEND v. ALBERTA (1998) and M. v. H. (1999), it is hard to accept the contention that most Canadians unquestioningly accept the ideal of complete judicial neutrality and impartiality. However, this is a minor critique. To whatever degree the “myth of the sacred” informs the Canadian political consciousness, these articles present a realistic account of the judicial process in Canada.

The first two articles in the book, Anthony A. Peacock’s “Judicial Rationalism and the Therapeutic Constitution: The Supreme Court’s Reconstruction of Equality and Democratic Process under the Charter of Rights and Freedoms,” and Mark E. Rush’s “Judicial Supervision of the [*656] Political Process: Canadian and American Responses to Homosexual Rights Challenges,” both deal with the Court’s response to gay rights claims. Peacock presents a detailed doctrinal and normative critique of VRIEND and other cases that make up the Court’s equality rights jurisprudence. Rush provides a very interesting comparison of the U.S. Supreme Court’s decision in ROMER v. EVANS (1996) with VRIEND, analyzed in light of John Hart Ely’s theory in DEMOCRACY AND DISTRUST (1980). Rush finds the Canadian decision to be antithetical to Ely’s reasoning and far less legitimate than the decision in ROMER, and he asserts that decisions such as VRIEND “undermin[e] the integrity of the democratic process that it seeks to protect by creating incentives for legislators to ignore popular majorities” (pp.92-93). The Peacock and Rush essays are similar in tone, and perhaps best epitomize the theme of the book.

The concluding essay in the first section, James B. Kelly’s “The Supreme Court of Canada and the Complexity of Judicial Activism,” is one of the most interesting and the piece most likely to be relevant to non-Canadian courts scholars. Kelly asserts that the adoption of the Charter and the burgeoning number of Charter cases in the Supreme Court have not led to unbounded judicial supremacy and deleterious effects upon the Canadian political system. Kelly finds through his empirical analysis that the impact of judicial activism varies according to the state actor involved in the case. For example, judicial review of police conduct actually strengthens liberal constitutionalism, because of the check upon these unelected state actors. Another observation made by Kelly is that the impact of judicial activism has been tempered by the emergence of “Charter dialogue,” or the tendency of legislators to enact revised laws after statutes have been overturned based upon the Charter. The concept of Charter dialogue between legislators and judges is not new (see, e.g., Hogg and Bushell 1997), but Kelly references the concept to make the important point that judicial activism is considerably more complicated than is usually asserted.

The next two articles, Tom Flanagan’s “Canada’s Three Constitutions: Protecting, Overturning, and Reversing the Status Quo,” and “Strategic Behavior and the Canadian Charter of Rights and Freedoms,” by Christopher P. Manfredi, provide a rational choice perspective on Canadian constitutional politics. The essay by Flanagan begins by providing an excellent historical overview of the three Canadian constitutional regimes: the first Canadian constitution, which set out a fragmented political system of checks and balances; the second constitutional regime, which was distinguished by cabinet domination and the rise of party discipline; and the modern regime, characterized by the adoption of the Charter and increasing judicial supremacy. In the second part of the essay, Flanagan provides useful commentary on formal modeling in the Canadian context. The Manfredi piece expands upon the Flanagan article and sets out a strategic model of judicial decision-making that explains the differences in the outcomes between the VRIEND and MORGENTALER (1988) decisions. Both of these articles are excellent and provide a much needed strategic perspective upon the Canadian judiciary. [*657]

The third section of the book provides a change of pace by examining non-governmental actors in the constitutional process. Donald E. Abelson, in “Think Tanks, Public Policy, and Constitutional Politics,” provides an interesting case study on the role of think tanks during a series of constitutional conferences in 1992. His analysis casts doubt upon think tanks’ ability to affect the constitutional policy-making process, at least in Canada. I am not sure if the lessons learned from this case are generalizable to other systems, but the questions raised should concern policy analysts and politicians alike. In “Cooperation and Conflict: Group Activity in R. v. KEEGSTRA,” Shannon Ishiyama Smithey examines the role of interest group interveners in the landmark hate speech case of R. v. KEEGSTRA (1990). Smithey develops an interesting dichotomy of traditional liberal interest groups that support absolute freedom of speech versus post-liberal groups that support social equality and thus endorse governmental regulation of hate speech. Smithey also finds that, in KEEGSTRA, the interest groups were not motivated to intervene in order to supply new or novel legal arguments for the Court. Rather, the interest groups were presumably motivated by symbolic goals, such as satisfying members or fulfilling the organization’s mission.

The final section of THE MYTH OF THE SACRED examines broad Canadian constitutional questions. Michael Lusztig, in “Deeper and Deeper: Deep Diversity, Federalism and Redistributive Politics in Canada,” examines the concept of “deep diversity” as a justification for special status for Quebec. In “Is a ‘True’ Multination Federation the Cure for Our Ills?” Hudson Meadwell considers the question of whether the creation of a multination federation consisting of Quebec and Canada is the best solution for the current constitutional impasse. Meadwell asserts that this design is neither feasible nor desirable, because of the inherent instability of such an arrangement. Both of these articles illustrate the complexity and intractability of the Canadian constitutional process and the question of Quebec.

Overall, THE MYTH OF THE SACRED is an excellent collection of articles on the Canadian constitutional process that will appeal to scholars of the Canadian judicial system as well as general comparative courts specialists. Its strengths are the diversity of topics and analytical approaches employed by the authors, as well as the thoughtful and challenging critiques contained in the volume. While few readers will agree with every article, the book makes a valuable and timely contribution to the study of Canadian constitutionalism.

REFERENCES:

Ely, John Hart. 1980. DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW. Cambridge: Harvard University Press.

Hogg, Peter W., and Allison A. Bushell. 1997. “The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All).” 35 OSGOODE HALL LAW JOURNAL 75-124.

CASE REFERENCES:

M. v. H., 2 S.C.R. 3 (1999). [*658]

MORGENTALER, SMOLING AND SCOTT v. THE QUEEN, 1 S.C.R. 30 (1988)

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

ROMER v. EVANS, 517 U.S. 620 (1996).

VRIEND v. ALBERTA, 1 S.C.R. 493 (1998).

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