In this important new book about the origins and impact of the Canadian Charter of Rights and Freedoms, James Kelly counters what he sees as a false dichotomy between the increased powers of courts and the further weakening of legislatures. He argues that multiple forms of activism structure the Charter’s relationship to Canadian democracy. Among these are the means by which the Charter has affected the ways the executive " both cabinet and public servants " vets pol- icy and draft legislation for compati- bility with Charter provisions.
Kelly provides a well-documented analysis of the factors that influenced the shape of the Charter that emerged from the patriation process. In review- ing the evidence the federal minister of justice (Jean Chrétien) and his officials gave to the special joint committee during the winter of 1980-81, Kelly demonstrates that the Charter’s framers recognized that ”œthe judiciary would play an activist and constructive role in shaping the Charter’s meaning.” The Charter was also intended to act as an internal check on parliamentary and bureaucratic actors, as Pierre Trudeau recounted in a 1997 interview with Kelly: ”œThe Charter…was consis- tent with my philosophy of checks and balances, because it requires the administrative state to develop policies consistent with the values of a demo- cratic society.”
One of the book’s particular strengths is the detailed account of how ”œCharter proofing” emerged within the federal government. Initially, the Department of Justice (DOJ) focused on reviewing existing statutes for com- patibility with the Charter. However, this role expanded under the leadership of Deputy Minister John Tait and in 1991 was confirmed through a memo- randum from the Clerk of the Privy Council, Paul Tellier, to all deputy min- isters. Tellier stressed that Charter scruti- ny must begin at the earliest stages of a policy exercise.
In this regard, Kelly analyses, with considerable subtlety, the functions of legal services units (LSUs) composed of Justice officials who work within depart- ments across the federal government. These functions are not limited to rais- ing flags once a memorandum to Cabinet or a draft bill has been prepared. Rather, ”œthe presence of [LSUs] at the departmental level allows Justice to begin a Charter screening process at the earliest stages of a policy exercise… Justice resides in departments at the level where policy expertise is found, and the DOJ’s Charter expertise matches a department’s unique policy expertise.”
The evolution of Justice’s Charter review functions leads Kelly to dis- agree with Donald Savoie’s view that, ”œalthough the centre of government” " particularly the prime minister and his closest advisers " has gained power, the composition of the group of central agencies that underpin that power has not changed. Kelly argues strongly that the DOJ ”œemerged as a central agency because the cabinet has prioritized the importance of govern- ing with the Charter.”
Kelly’s description of the institu- tionalization of rights vetting by the DOJ as the ”œprincipal legislative response to the Charter” may seem counterintuitive. But, as he reminds us, in our system of Westminster par- liamentary government, cabinet is within the legislature, not a constitu- tionally separate institution as in the United States. In this context, Kelly " quite rightly " laments the ”œfurther marginalization of parliament as an institution and deepened prime minis- terial government.” This leads to ”œthe intra-institutional paradox of legisla- tive activism: it has contained judicial power but has further weakened par- liament as an institution at the hands of the cabinet.”
What is to be done about this? Kelly holds hope that Parliament " notably through strengthened com- mittees " could be a more effective play- er in judicial dialogue. In this regard, he looks favourably on the work of various rights review committees in the United Kingdom, New Zealand and Australia.
Kelly accords some attention to suggestions that part of the answer to the judicial activism that vexes certain political leaders and academics is to revise the notwithstanding clause. If the tool were less blunt, it is argued, its use would be more feasible. Kelly’s view is that a ”œrevitalized section 33…is unnecessary because of several informal checks available to the cabi- net.” While this may be partly true, what is more significant is that for the vast majority of Canadians, use of the notwithstanding clause on major poli- cy conflicts is unacceptable. Directing energy to honing a more narrowly focused instrument would not likely change this.
Nor does Kelly see the pertinence of proposals for parliamentary review of Supreme Court nominations. Although Cassandra-like warnings were heard beforehand, the recent hearing with Justice Marshall Rothstein did no harm. However, the commit- tee’s mandate was hedged with condi- tions that underlined, in contrast to the situation south of the border, the primacy of executive " read prime ministerial " prerogative for such appointments. Even so, the hearing reminded us that many would like our legislatures to be more effective arenas for debates about the application of the Charter. It is to be hoped that, in future work, Kelly (and others) will advance concrete and realistic proposals to take us down this path.