GOVERNING WITH THE CHARTER: LEGISLATIVE AND JUDICIAL ACTIVISM AND FRAMERS’ INTENT

Vol. 16 No. 6 (June, 2006) pp.500-502

GOVERNING WITH THE CHARTER: LEGISLATIVE AND JUDICIAL ACTIVISM AND FRAMERS’ INTENT, by James B. Kelly. Vancouver: University of British Columbia Press, 2005. 336 pp. Hardcover. $85.00. ISBN: 0-7748-1211-7. Paper $29.95. ISBN: 0-7748-1212-5.

Reviewed by David L. Weiden, Department of Politics and Government, Illinois State University. Email: dweiden [at] ilstu.edu.

In GOVERNING WITH THE CHARTER, James B. Kelly has issued a major statement – perhaps the major statement to date – on the relationship between parliamentary democracy, the courts, and the Charter of Rights and Freedoms in Canada. This book will be required reading for those interested in the Canadian political process; however, there is also much to consider for the general legal scholar. For starters, Kelly challenges the court-centered view of judicial activism and develops a theory of legislative activism, which he argues is now the dominant mode of rights protection in Canada. Indeed, Kelly takes direct aim at the “support structure” thesis propounded in Charles Epp’s influential book, THE RIGHTS REVOLUTION (1998), asserting that the support structure model ignores the political and bureaucratic aspects of rights activism in parliamentary systems. Thus, GOVERNING WITH THE CHARTER is both a defense of the Supreme Court’s role in Charter jurisprudence as well as an articulation of a general theory of Canadian rights activism.

Kelly’s thesis is that criticisms of the judicial activism of the Canadian Supreme Court are misplaced, because the Court is not the dominant actor in Canada’s post-Charter political system. Indeed, Kelly contends that coordinate constitutionalism, wherein each political branch interprets the Charter on its own, is now the principal model of Canadian constitutional politics. According to Kelly, coordinate constitutionalism serves to strengthen, not weaken, Canadian democracy, as multiple forms of rights protection co-exist. Thus, the judiciary, executive and parliament each govern with the Charter by exercising scrutiny of legislation and ensuring that the framers’ intentions are protected. So, judicial activism coexists with legislative activism and bureaucratic activism in the modern Canadian democratic system. Kelly shows, in meticulous detail, the operation of bureaucratic activism through “legal services units” within the Department of Justice and how they screen draft legislation for Charter compliance. This form of Charter vetting has served to expand greatly the power and influence of the cabinet; paradoxically, though, this elevation of the cabinet has served to weaken Parliament’s role with potentially detrimental effects for Canada.

The book has many strengths, including a triangulated research methodology. The volume blends interpretive, historical, and doctrinal analysis with a significant qualitative component, in the form of extensive interviews with [*501] members of parliament, provincial officials, various public servants and former Prime Minister Pierre Trudeau. The first third of the book sets out the general theory, and also provides an historical and critical account of the constitutional politics surrounding adoption of the Charter. This historical account is important for the purposes of defining the framers’ intent; Kelly asserts that the framers desired a decidedly activist document – one that encompassed judicial review of the Charter’s protections, in tandem with legislative and bureaucratic rights activism. The second third of the book examines judicial activism in more detail, arguing that, in regards to criminal procedure cases, the Court has ruled moderately, protecting the rights of the accused and of society, by adopting a modified jurisprudential crime control model. The following chapter analyses judicial activism in civil cases; Kelly contends that the Court’s activism is not problematic because the statutes struck down were primarily those enacted or amended before adoption of the Charter (and the concurrent Charter vetting process). The final third of the book details the theory of legislative activism and the new cabinet-centered process of rights protection, with an emphasis on federalism issues. Kelly notes that the values of federalism are safeguarded by coordinate constitutionalism and multiple rights activism: “Coordinate constitutionalism has a deeper significance, therefore, as legislative activism acts as a bulwark against judicial encroachment on provincial autonomy” (p.182).

For this reviewer, the weakest part of the book is the chapter on judicial activism in non-criminal cases. Kelly’s argument rests upon the claim that the Supreme Court generally only strikes down statutes that were enacted or last amended before introduction of the Charter; thus, the Court is not making a discretionary policy decision but only invalidating legislation introduced during a different constitutional regime. The difficulty with this argument is that Kelly does not provide enough information to evaluate this claim fully. He notes that 64 statutes have been invalidated by the Court in the period from 1982 to 2003 and that 31% of those statutes were enacted between 1970 and 1982. Furthermore, only 12 statutes enacted after 1990 have been struck down by the Court. However, Kelly only provides a table listing the 64 activist cases and another table showing simple percentages for statutes ruled constitutional and unconstitutional in the period, 1982-2003. A table disaggregating the constitutional and unconstitutional statutes into two time periods – 1982 to 1990 and 1991 to 2003 – with percentages for each of those periods would be informative. Better yet, the use of inferential, rather than descriptive, statistical techniques would allow greater confidence in the assertion that the Court generally invalidates only statutes enacted in the pre-Charter regime.

On the other hand, in the same chapter, Kelly makes the compelling point that the Supreme Court has been increasingly likely to use the judicial remedy of suspending declarations of invalidity in Charter cases, rather than simply [*502] nullifying unconstitutional laws. The author notes that suspended remedies, rather than nullifications, show the Court’s commitment to coordinate constitutionalism because these suspensions allow an invalidated statute to be amended and brought into constitutional compliance. Here, Kelly does provide a table dividing Charter cases into two periods, 1982-1992 and 1993-2003. The data show that, from 1982 to 1992, nullifications accounted for 80.60% of Charter cases and suspensions accounted for 6.45%. But, in the period from 1993 to 2003, nullifications accounted for only 33.30% of Charter cases and suspensions increased to 33.30% of cases. Kelly also notes in the text that, since 1997, suspended decisions have increased to 42% of cases. His point regarding the changing nature of judicial remedies at the Court is well taken and one that is usually overlooked by commentators on judicial activism.

GOVERNING WITH THE CHARTER offers a number of challenging insights into the new era of Canadian politics. The theory of multiple rights activism, the historical analysis of framers’ intent, the reconceptualization of judicial activism, and the normative implications for the future of Canadian politics all make this a most satisfying volume for the scholar of Canadian law, as well as for the general comparative courts researcher.

REFERENCES:

Epp, Charles R. 1998. THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE. Chicago: The University of Chicago Press.

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