As part of its monthly Book Review Forum, the IPAC NWT Regional Group is pleased to present the following review for the month of February: McCormick, Peter J. (2014) The End of the Charter Revolution: Looking Back from the New Normal. Toronto: University of Toronto Press.
Upon reading the title and cover blurb of this book, I was initially skeptical. After all, recent years have seen the Supreme Court release a number of headline-worthy decisions on Charter matters ranging from extradition to the death penalty, collective bargaining, and security of the person. How could it be argued that the “Charter Revolution” is over?
Over the course of reading McCormick’s book, however, it is clear that his thesis has some nuance to it, and he makes a good argument in support of it. McCormick is not claiming that all Charter questions have been answered, or that there won’t be any surprises or evolution of jurisprudence in the future, but that the big questions – the fundamental questions about how the Charter is to be used, and how the rights and freedoms are to be analysed – have been dealt with. What remains, according to McCormick, is merely fine-tuning, elaboration and adaptation to changing social norms and changing evidence.
To a certain extent, the author’s claim makes intuitive sense. The whole concept of a truly entrenched Bill of Rights was of course new in 1982, and the concise language of the Charter had to be translated by the Court into more detailed “tests” that could be applied by lower courts with some semblance of consistency. This task included asking basic questions like what terms such as “discrimination” and “reasonable and justifiable” meant. As McCormick explains it, the late 80s and early 90s were the peak of this rush to build a basic analytical framework for the Charter and its various sections. What has followed, he argues, is a solidifying of the fundamental principles, with a durable consensus about the answers to these basic questions.
After providing some useful background on the development of the Charter, the book guides the reader through major developments in Charter case law under Chief Justices Dickson, Lamer and McLachlin. As the Author would have it (with examples chosen to illustrate), the Dickson Court “framed” the Charter, the Lamer Court “expanded” it and the McLachlin Court “contained” it. That said, and as the author acknowledges, there are of course exceptions to these broad characterizations – particularly in recent years. Examples sometimes seem cherry-picked, and the author engages in some editorializing about certain decisions that distracts from the objective of proving his thesis.
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The book next goes into an interesting statistical analysis of Supreme Court Charter decisions – chronicling, over time, the evolution of statistical indicators like the proportion of unanimous decisions compared with decisions with dissents/concurrences, frequency of citations to various categories of sources, word counts, and frequency of overturning previous Supreme Court cases. It all makes for interesting food for thought, with charts that tend to support the author’s hypothesis. For example, in the early years of the Charter, citations to academics and to American case law peaked as the Court canvassed broadly for basic ways of thinking about the newly entrenched rights. Further, unanimous decisions have become more frequent over time, indicating (perhaps) broad acceptance of certain basic principles by the Justices.
In other cases, however, the author seems to make leaps of logic where it serves his hypothesis. For example, he notes that certain decisions have the facts recited in the minority reasons, as opposed to the more common practice of having the facts recited in the majority reasons. He infers from this that these must be cases where the minority reasons were initially drafted with majority support, but then lost that support after further deliberations. This seems so obvious to the author as to require very little elaboration or evidence, although it left this particular reviewer with a raised eyebrow or two. Other allegedly meaningful indicators, like word count and caseload, could just as easily be explained by any number of other factors. Sometimes, in this section, it seems like the author is trying too hard to see meaning in numbers.
Overall, however, this book is a very informative and thought-provoking read. McCormick has clearly done his homework, and the statistical analysis in particular is something that, to this reviewer, was a new way of looking at judicial decision-making. It will be of interest to anyone who studies the impact of the Charter, or the more general role of the judiciary in Canada’s governmental apparatus.
This review was authored by Martin Saidla, who is legal counsel with the Department of Justice Canada. This review was prepared for Northern Public Affairs magazine by the Institute of Public Administration of Canada’s (IPAC) NWT Regional Group. Please note that the views expressed herein are those of the author and not of IPAC, the Department of Justice Canada or Government of Canada.