Governing With The Charter

In Governing with the Charter, James Kelly clearly demonstrates that our current democratic deficit is not the result of the Supreme Court’s judicial activism. On the contrary, an activist framers’ intent surrounds the Charter, and the Supreme Court has simply, and appropriately, responded to this new constitutional environment. While the Supreme Court is admittedly a political actor, it is not the sole interpreter of the Charter, as the court, the cabinet, and bureaucracy all respond to the document, which has ensured the proper functioning of constitutional supremacy in Canada. Kelly analyzes the parliamentary hearings on the Charter and also draws from interviews with public servants, senators, and members of parliament actively involved in appraising legislation to ensure that it is consistent with the Charter. He concludes that the principal institutional outcome of the Charter has been a marginalization of Parliament and that this is due to the Prime Minister’s decision on how to govern with the Charter.

In Governing from the Bench, Emmett Macfarlane draws on interviews with current and former justices, law clerks, and other staff members of the court to shed light on the institution’s internal environment and decision-making processes. He explores the complex role of the Supreme Court as an institution; exposes the rules, conventions, and norms that shape and constrain its justices’ behavior; and situates the court in its broader governmental and societal context, as it relates to the elected branches of government, the media, and the public.

Although the Canadian Charter of Rights and Freedoms is twenty years old, little is known about how it affects those who wield power, what influence it has on legislative decisions, or to what extent the government believes it should be constrained by Charter concerns. For most laws Parliament has the final word on how social policy is balanced against protected rights. Thus the extent to which legislation is sensitive towards rights depends on how those who develop, propose, and assess policy view the Charter. How influential are governmental legal advisors? How risk averse or risk tolerant are government ministers when pursuing legislative goals that may result in Charter challenges? How capable is Parliament in requiring government to justify and explain legislative choices that may impair rights? In Charter Conflicts Janet Hiebert examines these questions while analyzing the Charter's influence on controversial legislative decisions such as social benefits for lesbians and gay men, the regulation of tobacco advertising, the rules of evidence for sexual assault trials, the use of DNA for law enforcement purposes, and the rules for police searches of private residences. She questions the broadly held assumption that only courts are capable of respecting rights, arguing that Parliament shares responsibility with the judiciary for resolving Charter conflicts. She views the Charter's significance less in terms of the judiciary overruling Parliament than in the incentives and pressures it provides for public and political officials to satisfy themselves that legislation is consistent with protected rights.

Since the turn of the twenty-first century, Canadian unions have scored a number of important Supreme Court victories, securing constitutional rights to picket, bargain collectively, and strike. Unions in Court documents the evolution of the Canadian labour movement’s engagement with the Charter, demonstrating how and why labour’s long-standing distrust of the legal system has given way to a controversial, Charter-based legal strategy. This book’s in-depth examination of constitutional labour rights will have critical implications for labour movements as well as activists in other fields.

Few moments in Canadian history are as intriguing as the political battle between Prime Minister Pierre Trudeau and the “Gang of Eight” provincial premiers who opposed his plans to “patriate” Canada’s constitution from Britain. Patriation and Its Consequences revisits these constitutional negotiations, including the personalities, visions, and political struggles that shaped the resulting constitutional agreement. Focusing on the players behind the process, as well as First Nations and feminist activists, this volume explores the long shadow of patriation: the alienation of Quebec, the character of Canadian federalism, Aboriginal treaty rights, and the struggle to ensure gender equality.

Marking the Sesquicentennial of Confederation in Canada, this book examines the growing global influence of Canada's Constitution and Supreme Court on courts confronting issues involving human rights.