During the proceedings of the Special Joint Committee on the Constitution of Canada, Peter Russell observed that ”œI believe that a Charter only guarantees a change in the way in which certain decisions are made. It does not guaran- tee rights or freedoms, it guarantees a change in the way in which decisions are made about rights and freedoms.” Unfortunately, this insight was lost during the first 21 years of the Charter with the dominance of the judicial- centred paradigm and its focus on the Supreme Court. My decision to advance a cabinet-centred approach is rooted in the position that the Charter has principally changed Cabinet deci- sion-making as new procedures have been instituted to ensure that policy objectives are explicitly linked to Charter commitments. In turn, this has resulted in an important cultural shift in Canadian society, where the decisions and actions of the Cabinet, bureaucrats, the police and the judici- ary have changed to honour the constitutional rights in the Charter.
All of these changes occurred because political actors placed constitutional limits on their power and asked all actors exercising state author- ity to govern with the Charter. The intention of the framers to ensure greater protection for rights, therefore, has been advanced by the Cabinet through Charter dialogue within the machinery of government. The signifi- cance of the Charter is not its status as part of the constitution but the reac- tion to it by the Cabinet and the Supreme Court. This is one of the fal- lacies of the bills of rights debates that occurred in Canada, New Zealand and Britain: the belief that the status of a Charter or Bill of Rights determines the value of the document. In the Canadian case, if both the Cabinet and the Supreme Court had continued to approach rights as they had under the Canadian Bill of Rights then the Charter and its entrenched status would not have mattered. The Charter matters because these institutions have demonstrated a commitment to governing with rights and to collec- tively guard the constitution and its essential values.
In challenging the judicial-centred paradigm, I questioned the heavy use of American theories of constitutional- ism that structure the Canadian debate. Indeed, it was suggested that an uncritical use of American constitu- tionalism to the exclusion of British tradition resulted in too much James Madison and not enough A.V. Dicey in the Canadian debate and this resulted in a neglect of Parliament and the essential principles of Westminster democracy. As American constitution- alism is organized to prevent any branch of government from dominat- ing, the issue of judicial power is understandable in a political system based on separation of powers theory. It is also appropriate in political sys- tems where courts are the bulwark of the limited constitution. As Westminster systems are based on a fusion of power and the courts are not viewed with suspicion but a coordi- nate actor responsible for upholding the rule of law in tandem with Parliament, the most basic principle of American constitutionalism is not applicable in Canada. Further, the con- cern about judicial power, once placed in the broader context of the Cabinet response to the Charter, raises ques- tions about the loss of policy autono- my and political authority attributed to judicial review after 1982. As argued throughout this book, the framers of the Charter envisioned that courts, along with parliamentary actors, or more accurately the Cabinet, would be the bulwark against the limited consti- tution. The Canadian debate has suf- fered, therefore, by the uncritical application of foreign constitutional principals in the post-Charter era.
Dicey, the eminent 19-century British constitutional scholar, argued that Parliament remained supreme because judicial legislation, which he used to describe common law rules created by the courts, was secondary legislation because it could be reversed by an act of Parliament. Judicial legislation in the era of the Charter is still secondary legislation because the Cabinet retains the discre- tion how to respond to judicial find- ings of unconstitutionality. In arguing this, I have not endorsed the use of the Charter’s notwithstanding clause, which surely makes judicial decisions secondary legislation in the most explicit way. Judicial review is a sec- ondary component of Charter review because of the extensive efforts by the Cabinet, supported by the Department of Justice to pass statutes that advance Charter rights. Additionally, the emerg- ing approach to judicial remedies has provided the Cabinet with sufficient discretion to determine how to respond to judicial invalidation and re- establish the constitutionality of public policies. This is the clearest illustration of the Cabinet and the Supreme Court governing with the Charter, as the Supreme Court identifies violations and the Cabinet introduces policy amendments to ensure the continued application of unconstitutional laws. Indeed, this coordinate approach to the Charter reveals that the distinction between law and politics may not be unattainable or as blurred as critics of judicial power contend.
The focus on legislative responses, however useful to understand the rela- tionship between the Cabinet and the Supreme Court, is unconvincing and continues the limitations of the judi- cial-centred approach, as the critique of the Charter dialogue theory present- ed by Peter Hogg and Allison Bushell suggested: this is Charter dialogue with a judicial accent and it overlooks the presence of lower forms within the bureaucratic arena that precede judi- cial review. Perhaps more importantly, this dialogue on rights structures Charter dialogue at the level of the Supreme Court. The analysis of legisla- tive activism demonstrated that dia- logue on rights does not require judicial invalidation for the Cabinet and bureaucracy to engage in this dis- course, as Hogg and Bushell argued, but is now an institutionalized part of the development of legislation. Though legislative responses as a framework was used to demonstrate the shared responsibility between the Cabinet and the Supreme Court, I argued that the principle response was the institutionalization of Charter scrutiny within the legislative process, and not simply the amendment of statutes by the Cabinet identified by the Supreme Court as unconstitution- al. Contrary to either the critics of judicial activism or the Charter dia- logue theorists, the Cabinet remains the centre of public policy despite the Charter’s entrenchment.
My analysis did not begin with the first Charter decision by the Supreme Court in 1984 but the politi- cal decision to seek an entrenched Charter that intensified in the summer of 1980. The constitutional politics that surrounded the Charter was dom- inated by the First Ministers and not Supreme Court justices, though the Supreme Court played a significant role in the Patriation Reference that ended the constitutional stalemate surrounding unilateral patriation by the Trudeau government. Though coordinate constitutionalism is a term associated with Madisonian democra- cy, it is, as Brian Slattery demonstrated, a valuable framework for understand- ing the institutional reaction to the Charter by courts and legislatures. One of the limitations in the Canadian debate is the neglect of the constitu- tional politics that surrounded patria- tion. This is a significant period in Canadian history and for the Charter, as the substance of the document was decided upon in the parliamentary arena and not the judicial arena.
The constitutional politics sur- rounding the Charter revealed competing agendas and the use of var- ied resources by the actors that sought to ensure their vision triumphed. At first, the Trudeau vision was unsuccess- ful because of the dynamics of execu- tive federalism and the need to secure unanimous consent from the provincial premiers. The draft Charters during the summer of 1980 demonstrate the influ- ence of the premiers who sought to prevent an entrenched Charter, and failing this, a weak Charter that placed limited constraints on their power. The principle of unanimity resulted in the Trudeau government engaging in the politics of appeasement, and the draft Charter presented to Parliament after the declaration of unilateral patriation was marginally better than the Canadian Bill of Rights. The formative event that allowed the Trudeau vision of an activist constitution to marginal- ize that of the premiers was the Special Joint Committee. After the draft Charter was presented to parliamentari- ans, a consensus emerged that amend- ments were needed to improve the document. Critical commentary by par- liamentarians and interest groups resulted in a significant strengthening of the Charter, and the document that exists today is the product of democrat- ic activism, and not judicial activism that followed its entrenchment. Once the Patriation Reference decision returned the draft Charter to the insti- tutions of executive federalism, conces- sions to the premiers were agreed upon, such as the notwithstanding clause. However, the premiers were no longer the dominant actors in constitutional politics during November 1981 as the concessions to parliamentary suprema- cy had been removed in the draft Charter. Seizing on this shift in relative bargaining strength, the activist inten- tions of the Trudeau government secured substantial provincial consent and the Charter became part of the Canadian constitution.
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The assessment of the Supreme Court and judicial activism pre- sented here departs from the standard approach that focuses on yearly rates of activism. The difficulty with this meas- ure is that a significant number of statutes invalidated by the Supreme Court were enacted or last amended before the Charter was entrenched or shortly after 1982. In effect, this meas- ure of judicial power is empirically irrelevant, as fluctuations in the yearly rates of activism may simply be the by- product of the Supreme Court review- ing a large number of statutes enacted before the Charter, where the legisla- tive process did not require an exten- sive review to ensure that policy objectives were consistent with Charter commitments. The focus on the date a statute was enacted or last amended demonstrates that the Supreme Court has generally been activist against poli- cy decisions of the past and that statutes enacted in a policy environ- ment that scrutinizes legislation from a rights perspective are largely found constitutional or perhaps more reveal- ing, are not even reviewed by the Supreme Court. This suggests that the determination of constitutionality is not a judicial choice but a reaction to political decisions and changes in the machinery of government instituted by all cabinets in Canada.
In those situations where the Supreme Court invalidates legislation, an important development that strengthens coordinate constitution- alism is the use of suspended deci- sions. This is a significant change as the Supreme Court provides the responsible cabinet with an opportu- nity to draft amendments to ensure the constitutionality of offending statutes. Legislative activism was pri- oritized in this book because judicial review is a reaction against the policy choices of the Cabinet. It was demon- strated that the institutionalization of Charter scrutiny as part of the legisla- tive process is the principal cause of judicial deference. Perhaps more importantly, the decline of judicial activism reveals the central weakness of the judicial-centred paradigm: the assumption that the Charter has value if the courts are activist and willing to protect rights by finding political choices unconstitutional. I disagree with this approach because it overlooks that multiple activist responses to the Charter exist and judicial deference is the result of a rights culture within the legislative process. The Cabinet is the principal guardian of the Constitution and the declining rates of judicial activism are evidence of this.
The emergence of bureaucratic activism is significant and the role of the department of Justice in scruti- nizing legislation from a rights per- spective has greatly contributed to the improved quality of legislation in Canada. While Charter scrutiny is most institutionalized at the federal level, comparable processes exist in Ontario and Quebec and all cabinets have taken steps to govern with the Charter during the legislative process. The importance of the Charter is not its status or the entrenchment of rights but the Cabinet’s responses to it that have changed the legislative processes in Canada. In this book, the relation- ship between the Charter and provin- cial autonomy was considered, as an important criticism in 1982 involved the centralization of Canadian federal- ism that would result through judicial review involving rights. This concern has not been borne out largely through judicial efforts and those of provincial cabinets to guard the con- stitution and an essential principle, federal diversity.
The reconciliation between rights and federalism is the result of a joint effort by the Supreme Court and provincial cabinets to govern with the Charter argued that this development was further evidence of coordinate constitutionalism in Canada. As provincial cabinets have instituted Charter scrutiny in the legislative process, this has led to fewer provin- cial statutes being invalidated as inconsistent with the Charter. This attempt to reconcile rights and federal- ism through legislative changes has been bolstered by the Supreme Court and its sensitivity to provincial auton- omy in its Charter jurisprudence.
In challenging that the principle institutional effect of the Charter has been the empowering of the Supreme Court at the expense of the Cabinet, I caution against an overly positive assessment because of the intra-institu- tional implications of the Cabinet’s attempt to govern with the Charter. While judicial supremacy has not occurred, the decision of successive prime ministers to govern with the Charter from the centre has continued the marginalization of Parliament asso- ciated with the central agency reforms of the Trudeau and Mulroney govern- ments. The entrenchment of executive supremacy is the most pressing institu- tional limitation associated with the political response to the Charter. Indeed, judicial power may be the only effective check on unbridled political power in Canada at the present time. The attempts at reform have focused on the appointment process of Supreme Court justices. This reform is misguided in a number of respects, least of which is the perpetuation of the judicial-centred view of the Charter and the assumption that Canadian democracy can be improved by changing the appointment of jus- tices to the Supreme Court. My concern is that this is a reform borrowed from the American experience, where the public vetting of judges is viewed as democratic and necessary to ensure the integrity of the legislative process. This is the wrong comparative framework, as the Canadian Charter is not a northern and paler version of the American Bill of Rights but a constitutional docu- ment embedded with the principles of Westminster democracy.
In the final analysis, whether par- liamentary actors govern with the Charter or are ruled by it through unfavourable judicial decisions is ulti- mately a political choice. I have argued that the Charter has primarily changed Cabinet decision making and intro- duced a rights culture within the judi- cial and legislative arenas. A cabinet-centred approach to the Charter can be based on the notwith- standing clause or it can be the result of institutional changes in the legisla- tive process that scrutinize policy from a rights perspective. Both approaches ultimately allow the legislative choices of the Cabinet to withstand judicial review but only one demonstrates a commitment to the Charter and con- stitutional supremacy. How to govern with the Charter, therefore, is also a political decision.
