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\u2014 both cabinet and public servants\u2014 vets policy and draft legislation for compatibility with Charter provisions.<\/p>\n
Kelly provides a well-documented analysis of the factors that influenced the shape of the Charter that emerged from the patriation process. In reviewing the evidence the federal minister of justice (Jean Chr\u00e9tien) and his officials gave to the special joint committee during the winter of 1980-81, Kelly demonstrates that the Charter’s framers recognized that \u201cthe judiciary would play an activist and constructive role in shaping the Charter’s meaning.\u201d 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: \u201cThe Charter…was consistent with my philosophy of checks and balances, because it requires the administrative state to develop policies consistent with the values of a democratic society.\u201d<\/p>\n
One of the book’s particular strengths is the detailed account of how \u201cCharter proofing\u201d emerged within the federal government. Initially, the Department of Justice (DOJ) focused on reviewing existing statutes for compatibility with the Charter. However, this role expanded under the leadership of Deputy Minister John Tait and in 1991 was confirmed through a memorandum from the Clerk of the Privy Council, Paul Tellier, to all deputy ministers. Tellier stressed that Charter scrutiny must begin at the earliest stages of a policy exercise.<\/p>\n
In this regard, Kelly analyses, with considerable subtlety, the functions of legal services units (LSUs) composed of Justice officials who work within departments across the federal government. These functions are not limited to raising flags once a memorandum to Cabinet or a draft bill has been prepared. Rather, \u201cthe 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.\u201d<\/p>\n
The evolution of Justice’s Charter review functions leads Kelly to disagree with Donald Savoie’s view that, \u201calthough the centre of government\u201d\u2014 particularly the prime minister and his closest advisers\u2014 has gained power, the composition of the group of central agencies that underpin that power has not changed. Kelly argues strongly that the DOJ \u201cemerged as a central agency because the cabinet has prioritized the importance of governing with the Charter.\u201d<\/p>\n
Kelly’s description of the institutionalization of rights vetting by the DOJ as the \u201cprincipal legislative response to the Charter\u201d may seem counterintuitive. But, as he reminds us, in our system of Westminster parliamentary government, cabinet is within<\/em> the legislature, not a constitutionally separate institution as in the United States. In this context, Kelly\u2014 quite rightly\u2014 laments the \u201cfurther marginalization of parliament as an institution and deepened prime ministerial government.\u201d This leads to \u201cthe intra-institutional paradox of legislative activism: it has contained judicial power but has further weakened parliament as an institution at the hands of the cabinet.\u201d<\/p>\n What is to be done about this? Kelly holds hope that Parliament\u2014 notably through strengthened committees\u2014 could be a more effective player 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.<\/p>\n 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 \u201crevitalized section 33…is unnecessary because of several informal checks available to the cabinet.\u201d 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 policy conflicts is unacceptable. Directing energy to honing a more narrowly focused instrument would not likely change this.<\/p>\n 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 committee’s mandate was hedged with conditions that underlined, in contrast to the situation south of the border, the primacy of executive\u2014 read prime ministerial\u2014 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.<\/p>\n","protected":false},"excerpt":{"rendered":" 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 […]<\/p>\n","protected":false},"featured_media":0,"template":"","meta":{"_acf_changed":false,"content-type":"","ep_exclude_from_search":false,"apple_news_api_created_at":"2025-08-30T02:28:08Z","apple_news_api_id":"48a13279-1626-4135-816b-11f81628a5d1","apple_news_api_modified_at":"2025-08-30T02:28:08Z","apple_news_api_revision":"AAAAAAAAAAD\/\/\/\/\/\/\/\/\/\/w==","apple_news_api_share_url":"https:\/\/apple.news\/ASKEyeRYmQTWBaxH4Fiil0Q","apple_news_cover_media_provider":"image","apple_news_coverimage":0,"apple_news_coverimage_caption":"","apple_news_cover_video_id":0,"apple_news_cover_video_url":"","apple_news_cover_embedwebvideo_url":"","apple_news_is_hidden":"","apple_news_is_paid":"","apple_news_is_preview":"","apple_news_is_sponsored":"","apple_news_maturity_rating":"","apple_news_metadata":"\"\"","apple_news_pullquote":"","apple_news_pullquote_position":"","apple_news_slug":"","apple_news_sections":[],"apple_news_suppress_video_url":false,"apple_news_use_image_component":false},"categories":[9346],"tags":[8392],"article-status":[],"irpp-category":[4263],"section":[],"irpp-tag":[7091],"class_list":["post-262174","issues","type-issues","status-publish","hentry","category-uncategorized","tag-charter-of-rights-fr","irpp-category-constitution-fr","irpp-tag-charte-des-droits"],"acf":[],"apple_news_notices":[],"yoast_head":"\n