Judicial Review, Charter Politics, and Federalism in Canada -- the American Influences

Ivan Jankovic 

Simon Fraser University (SFU) - Department of Political Science
2013

APSA 2013 Annual Meeting Paper 
Abstract:      
The political and judicial revolution that has taken place in Canada after the adoption of the Charter of Rights and Freedoms in 1982 has been usually interpreted in the context of the effects it had on the relationship between the legislative and judicial powers, and increased capacity of individuals to protect their rights by using the strengthened judicial review. Even when this process is being criticized, that is usually done in the context of the legislature-judiciary dichotomy and the general philosophical and political musings about the proper balance between the two branches of government in a democratic society.

The aim of this paper is to put this discussion more squarely in the context of the theory and practice of federalism in Canada, in a comparative American perspective. More specifically, it argues that the adoption of the Charter of Rights influenced Canadian federalism in the similar way the (in) famous incorporation of the Bill of Rights into the 14th amendment changed the dynamic of American federalism. In both cases the discourse of individual rights and constitutional freedoms was used for the purposes of political centralization and nation-building. And in both cases the documents purporting to “protect” rights (the Bill of Rights and the Charter of Rights) were employed as a means of abridging the legislative powers of the sub-national governments (although in Canada this centralizing process was arguably less drastic than in the USA).

The Canadian Charter functioned as a legal tool by which judicial review as a way of centralizing power was put in motion. In emulation of the American 14th amendment and commerce clause jurisprudence the Charter had given to the coalition of federal politicians, bureaucrats, rights experts and litigating organizations an explicit authorization for using the judicial process as a way of transforming the unpopular policy positions into the minority “rights” claims. This transformation works by removing some contentious policy issues from democratic debates, especially in the areas of provincial jurisdiction such as language, education health care, and so on.

This process is facilitated by the close links between the American and Canadian prevailing legal orthodoxies (“living Constitutions” and the “Living tree” doctrines) reflected in the overwhelming acceptance of the “substantive due process” guarantees as a way of narrowing the discretion of legislatures, especially the sub-national ones, and giving to the courts a much larger powers in shaping the political outcomes.

A special feature of Canadian centralization by the Charter, which is not prominent in the American case is federal government’s funding and aiding a wide network of court party interests – civil rights, minority, health care and other lobby groups, that use the Charter mechanisms to advance their particular interests wrapped up into the Charter broad and open-ended language as “individual rights”, and serve as a proxy for the federalization of political issues and consequent retrenchment of provincial rights and autonomy vis a vis federal government.

Number of Pages in PDF File: 30

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2301540