Judicial Power And The Charter

Chiefly papers originally presented at Guiding the Rule of Law into the 21st Century, a conference held Apr. 16-17, 1999 at the University of Ottawa.

This book examines the paradox at the heart of the relationship between judicial power and liberal constitutionalism in Canada, the use of judicial power to review and nullify or modify policies enacted by democratically accountable decision-makers. In this new edition, Manfredi refines his original argument and brings the content completely up to date.

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.

"Here finally is a book that unveils the politics that infuse Canadian courts and their decisions ... and warns us of the effects of a judicialized politics on our democratic traditions." - Leslie A. Pal, Carleton University

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.

Explores the relationship between the legitimacy, the efficacy, and the decision-making of national and transnational constitutional courts.

An investigation into what happens when the Supreme Court of Canada declares a statute unconstitutional. When the Supreme Court of Canada makes a decision that invalidates a statute, it creates a constitutional moment. But does that have a direct and observable impact on public policy? Constraining the Court explores what happens when a statute involving a significant public policy issue--French language rights in Quebec, supervised consumption sites, abortion, or medical assistance in dying--is declared unconstitutional. James B. Kelly examines the conditions under which Parliament or provincial/territorial legislatures attempt to contain the policy impact of judicial invalidation and engage in non-compliance without invoking the notwithstanding clause. He considers the importance of the issue, the unpopularity of a judicial decision, the limited reach of a negative rights instrument such as the Charter, the context of federalism, and the mixture of public and private action behind any legislative response. While the Supreme Court's importance cannot be denied, this rigorous analysis convincingly concludes that a judicial decision does not necessarily determine a policy outcome.