Those who have slogged through typically more pompous tomes penned by sitting or retired U.S. Supreme Court justices and other high-ranking officials (from Henry Kissinger to Hillary Clinton) may be skeptical of my description of Strayer’s book as “entertaining.” But it really is, very much so.
- Bryan H. Wildenthal, 2014
Far too many people in formally democratic countries disdain the subject of politics as both “distasteful” and “remote,” even if they know that it affects their lives daily and in intimate ways. Politics shapes the fate of their children in wars and elementary schools, the prices they pay for electricity and imported tennis shoes, and the efficacy of the pharmaceuticals and the purity of the food that they ingest to maintain mental and physical health. Of course, despite their scorn, they somehow can’t resist noticing when, with some regularity, they are invited to pay attention to open elections for positions as measly as small-town mayors or as imposing as national leadership. These events, however, are treated as contests akin to horse races or professional sports championships. They are largely presented as entertainment and only sporadically inspire enthusiastic, enduring and principled engagement.
The more specific topic of constitutional law seems even less alluring. It may not be as odious or remote, but it adds “arcane,” “incomprehensible” and “boring” to the inventory of negative adjectives used to describe the exercise and restraint of power. Ponderous discussion, procedural minutiae and foundational legal fictions deflate politics into something unattractive—not because it is unimportant, but because its connection to lived reality appears more tenuous, contingent and ultimately unfathomable. Compared to abstruse legal reasoning and the parsing of statutory texts, the closing of a hospital or the opening of a community centre are immediate, visible and unmistakably connected to recognizable political decision makers. So is a state visit by a foreign official of sufficient reputation to merit a photo-op on the nightly news or the detection of a politician committing an indiscretion― whether financial or sexual. These incidents may not have the gravity of a Supreme Court finding that alters the outcome of a lower court judgement on corporate or commercial law, or that disallows an important piece of legislation because of a jurisdictional dispute; but, local concerns often attract more notice than constitutional judgements because they require less thought to understand and less understanding to appreciate than complex and confusing judicial deliberations. What’s more, it seems to be the consensus among journalists and politicians that public indifference to the niceties of constitutional questions is not really a problem. After all, too much citizen involvement can be irksome for decision makers if it leads to the withdrawal of at least tacit consent for government initiatives. If, on the other hand, it is considered too much trouble for citizens to discover what’s happening to their country, then no one will make an excessive fuss when an acute problem is said to call for extraordinary measures.
An informed electorate, we are assured, could make the already difficult task of governing next to impossible. So, voters are let off the hook. Elected officials and mainstream editorialists comfort us by saying that all is well enough and that we need not bother ourselves with complexity and perplexity. In fact, they count on our apathy for their own safety.
As inauspicious as these observations may be at the beginning of a review of a book on constitutional law in Canada, the facts must be faced. No matter that the word “revolution” is counter-intuitively inserted into the title and despite recent efforts by the current Prime Minister to punch (or flail) above his weight in the swaggering world of international bombast, Canada itself is arguably among the least exciting nations on the planet. Seldom is constitutional law a matter of intense water-cooler interest among ordinary citizens. So, even for Canadians whose lives may be directly and profoundly affected by the choices made my nine intimidating authorities in black robes, how exhilarating could a book about constitutional history and current arrangements possibly be?
The answer, of course, depends upon how seriously we take the grounding principles and practices that ultimately establish the legitimacy and the limits of everything from taxation to environmental regulation, from the economy to criminal justice, and from civil liberties at home to human rights abroad. Without at least a modest understanding of the “rules of the game,” almost any discussion of “hot topics” is apt to be superficial at best and annoyingly wrong-headed at worst. How matters as diverse as reproductive technology and physician-assisted suicide, intellectual property and laws of libel, economic and environmental policy (or the lack thereof) are addressed and (where possible) resolved has much more to do with constitutional law than most people realize or are willing to comprehend. Absent such knowledge, however, most seemingly acute discussions are merely banal banter comparable to comments about chess matches or cricket games by observers who are clueless about the how the matches are properly to be played.
The resistance to knowledge about law and governance is unfortunate, but it is also to be expected, especially in colleges that are besotted with the notion that the collegiate curriculum should be restricted to the dissemination of marketable skills whether in creative advertising, nursing, the culinary arts or motorcycle maintenance. Matters of civics and citizenship, where they are mentioned at all, are rarely taken seriously. Not only in Canada, but also throughout North America, much of Europe and increasingly the rest of the world, the emphasis is on job-readiness with the humanities and social sciences receiving less attention and even less respect. So, when issues of politics and governance are addressed at all, they are mainly offered in sham “social studies” and “civics” classes where teachers are usually content to rattle off superficial formulaics about the separation of powers (if any) among the main branches of government, the distribution of powers (if any) among the main levels of government and the content of a Bill or Charter of Rights (if any). There is, of course, nothing wrong with such basic information; in fact, it’s essential but, if that’s all there is, then there isn’t very much and there certainly is not enough.
With such a curriculum, there is little wonder that students (if any) are content to memorize material for the inevitable roster of multiple-choice questions without permitting themselves the time, energy or luxury to think about what the material means in the abstract, never mind to their material lives. And, of course, there is little recognition of the fact that constitutions are rarely fixed and decided; rather, they are essentially contested turf on which many of the most powerful changes to our social mores, institutions and customs are determined. What’s worse, it is even unsurprising to learn that the dearth of enthusiasm for such knowledge among college administrators, faculty and students is mirrored in contemporary debates in some law schools about whether Constitutional Law should remain as a required course for people entering the legal profession (Paulsen, 2012). Somehow, we seem to have lost not only our sense of direction, but even the desire to have a readable compass or a reliable map.
Of course, we are not all citizens of putatively pallid polities. In some countries there is considerably more emotional investment in constitutional debate than in others. For example, the Constitution of the United States is commonly deemed a sacred text even by the more apathetic among its electorate. The citizens who live under its sway find that it is directly or indirectly invoked in patriotic displays of loyalty from accepting jury duty to entering into military service. Its wisdom is cited on national holidays and its political leaders swear, upon assuming office, that they will uphold and defend it to their dying breath. Moreover, it is hotly debated in confrontations between two broad schools of thought―those who insist that only the “original” meaning and the “intent” of the founders of the republic should be used as the basis of constitutional interpretation versus those who imagine the constitution to be a “living” document which should take into account historical developments and cultural changes when interpreting the law (Zietlow, 2012).
The debate between strict “constructivism” (deciphering the words as the founders had intended without modification or modernization) versus “judicial activism” (applying the constitution in light of anything from a judge’s personal political principles to large-scale cultural changes that allegedly either render the founders’ views obsolete to demands that constitutional provisions be expanded to cover new circumstances unforeseen by Thomas Jefferson, James Madison and their associates) is ongoing and seemingly endless. So, in the USA, decisions such as Brown v. Board of Education (1954) which declared the racial segregation of American schools to be “unconstitutional” and Roe v. Wade (1973) which decided that a woman’s right to privacy extended (at least partly) to her decision to have an abortion are famous examples of “judicial activism,” both of which entailed a novel interpretation of the Fourteenth Amendment (which guaranteed citizens “due process” and “equal protection of the law).” The consequences of these decisions are still subjects of controversy and at issue in occasional attempts to have them overturned in subsequent legislative initiatives and judicial appeals.
That such matters should be highly divisive and passionately disputed in the United States is wholly understandable in view of the fact that the USA was, according to the title of political sociologist Seymour Martin Lipset’s influential account (1963), the first “new nation.” It was the initial group of European colonies in the modern imperial era to revolt against external authority and to succeed in winning its independence. For a time it was (and, for a longer time, it imagined itself to be) a shining example of the potential of oppressed nations to throw off the yolk of imperial domination and to be free from external mercantile control.
According to American historian Clinton Rossiter (1953), the violent overthrow of existing authority by American “revolutionaries” in the decade following their Declaration of Independence (1776), resulted in a traumatic break with the past. Cultural continuity was ruptured in a way that was similar to a personal abandonment of religious beliefs and, in order to survive the almost metaphysical shake-up, it was necessary for Americans to invent a new and compelling justification for their political ideas and arrangements.
As Canadian historian W. L. Morton (1961, p. 84) summed it up, the dramatic American break from tradition required a dedication to new moral basis for authority that would provide a transformative “covenant” redeeming a people who had shed their past. “Americans are a people of the covenant,” Morton intoned. That means that they submit to “a measure of uniformity … that the covenant to a degree cuts the covenanted off from the uncovenanted … [and that] the covenant implies not only uniformity and isolation, but also a mission.” Thus were born “American Exceptionalism” (Cross, 2013) and the contemporary conceit of being the “indispensable nation” (Englehardt, 2014.)
Canada is (or at least was) different. As authentic conservative philosophers and historians (not neoliberal apologists) have repeatedly affirmed, this country was not conceived in revolutionary turmoil. It was the product of a lengthy process of evolution and maturation in which colonial bonds were systematically loosed (never broken). It was formed in 1867 out of political necessity (the imminent threat of aggression and expansion by the liberal republic to the south). It was built on (resentful) tolerance and (grudging) compromise among competing internal interests―not least but not only between the two founding colonial cultures consisting of the pre-revolutionary French and the anti-revolutionary British. Contrary to the United States, which created and promulgated its indomitable civil religion, Canada has promoted (mostly) a political culture in which exorbitant claims and extraordinary ambitions have received little support and have, as a result, caused less strife.
The idea of Canada as a “peaceable kingdom” may be more than a trifle idyllic or, maybe, ironic (Kilbourn, 1970, 1988); yet, there is something to the notion that Canadian society is united at the top by allegiance to a political process and the authority of the Crown, rather than at the bottom by a commitment to an all-encompassing set of values, a unique “way of life” and the sovereignty of “the people.” The absence of a common myth of origin and the essential ambiguity concerning the nature of the “Canadian identity” have defined the country at least since Confederation. They remain a persuasive summary of Canadian (dis)unity.
The moral core of Canadian nationhood is found in the fact that Canada is a monarchy and in the nature of monarchial allegiance. As America is united at bottom by the covenant, Canada is united at the top by allegiance. Because Canada is a nation founded on allegiance and not on compact, there is no pressure for uniformity, there is no Canadian way of life. Any one, French, Irish, Ukrainian or Eskimo, can be a subject of the Queen and a citizen of Canada without in any way changing or ceasing to be himself.
– W. L. Morton, 1961
Cobbled together from the pre-revolutionary population of late-feudal and traditionally religious Québec, a number of United Empire Loyalists who had chosen to flee (or were expelled from) the American experiment and who continued (understandably) to distrust and to fear their former compatriots, and incessant waves of immigrants initially from the Highland Clearances of Scotland, the Irish Diaspora and the emigration of English paupers, soldiers and aspirant entrepreneurs (Campey, 2008; Gray, 1999; Howells, 1998; Johnston, 1972), a nascent Canadian reality was forged. It produced a more ideologically heterogeneous society (Horowitz, 1966) than the United States. As well, there was among its elites a self-conscious decision to bring about a genuinely “conservative” nation on the northern half of the North American continent. Even though a more “confederated” Canada would not be realized for almost a century after the denizens of the lower “thirteen colonies” established their republic, pushed west across the continent, conducted a war of conquest against Mexico and imposed their will across the Pacific, the threat that the USA would seize the rest of British North America prompted Canada to become the first “anti-American” country and to remain so well into the twentieth century.
So, since the American Revolution begat two countries, first the United States and then Canada, whence came the “American revolution” and why?
American patriots often indulge in the conceit that the American Revolution was conceived and executed as a blow for what have become known as “freedom and democracy.” The language of freedom may be somewhat apt, but the notion of democracy is less so. The United States, from the outset, had few scruples about the foundational importance of genocide and slavery―the removal and, if needed or merely convenient, the extermination of aboriginal peoples and the enslavement mainly of Black peoples from Africa. Leaving out free working class men (which the Republic did for over half a century) and women (which the Republic did for almost a century and a half), the fundamental aim of the Revolution was freedom, to be sure; but, it was mainly freedom of capital and the liberty of owners of capital to use their wealth to accumulate more wealth. The revolutionary impulse was not directed at those who would deny democracy, but at those who would limit freedom of investment, exchange and expansion of the colonists into the whole of the North American continent. The main object of colonial rage was less political than economic. The rebels were not much interested in (and many were actively hostile to) democracy. They were interested in abolishing the mercantile system through which the British controlled American agriculture, manufacturing and commerce. With this in mind, it is easy enough to draw the cardinal distinctions between the former British colonies and how they diverged.
“Your people, sir, is a great beast!” – Alexander Hamilton, American Revolutionary, 1792
The United States, was built on such principles as these:
- distrusted state authority;
- divided powers among the branches of government (checks and balances);
- encouraged decentralized authority (states’ rights);
- established a written constitution.
“The relationship of state government to the national government in our federal system must not be mistaken. To allow the national government the right to tell state citizens what they can or cannot do violates the contract between the states that is the foundation of our country.”
– Lex Green, 2010
Notably, in the distribution of powers, although the Constitution of the United States deals mainly with national powers, the several states possessed from the outset extensive and sometimes exclusive power over education, health, safety, morals, welfare and broad but vague “police powers” as well as the right to establish a “national guard” (in effect a local army or militia of the sort intended to have “the right to bear arms” under the often wilfully misinterpreted Second Amendment). In addition, the states were given “residual” powers―those not expressly held by the Washington (Elazar, 1972; Shapiro & Tresolini, 1983: 115). By contrast, in fashioning an alternative to the American federation, Canadian politics and governance embraced these four main themes:
- deference to the state;
- a dominant executive;
- strong central government;
- a (largely) unwritten constitution.
The implications were tremendous. In their far-famed branding slogan, the United States invoked the deity, whom they cast as an eighteenth-century liberal whose main concern was to give all free male citizens inalienable and exclusively individual rights to “life, liberty and the pursuit of happiness” (happiness being code for private property). Canada, in the alternative, paid less attention to individual rights and was more concerned with the “common weal,” encouraging the maintenance of “peace, order and good government” under the firm but beneficent hand of the constitutional monarch and the stability afforded by respect for custom and tradition.
In the time since both countries established their differing systems of governance, however, enormous demographic, technological and social changes have taken place. Without exploring the reasons for these developments, it is commonly acknowledged that two contrasting patterns have emerged in order to manage necessary adjustments.
One is that the central government in Washington, DC, has grown more and more to dominate both domestic life and American global aspirations under what is commonly called the “imperial presidency” (Schlesinger, 1973). Contemporary efforts by an obstructionist Republican Congress to defeat any and all initiatives by President Obama notwithstanding, the almost Orwellian expansion of the American “national security state” has assumed increasing control over the “homeland” in a manner unrivaled in Canada (at least prior to contemporary efforts to embolden institutions such as the Communication Security Establishment Canada with its eerie local postal address of at PO Box 1984, in Ottawa).
In Canada, on the contrary, the intent to seal a strong central government was evident in the British North America Act of 1867 (especially in Sections 91-92 which allocated powers to the dominion and the provincial governments, reserving all residual powers to the central authority. It made Ottawa the centre for national policy in domains that allegedly mattered, such as money and banking, marriage and divorce, navigation and shipping, postal service, patents and copyrights, criminal law and penitentiaries, taxation and bankruptcies, buoys and lighthouses, and coastal and inshore fisheries. The provinces, on the other hand, were given the supposedly trivial responsibilities of education, health care and municipalities―now the most expensive obligations with arguably the most important policy implications for Canadian society. The fact that the provinces have become more legislatively and administratively important than the federal government, but are hampered by limited taxing powers, is merely one of the conundrums facing Canadian politicians and constitutional authorities.
“Pierre Trudeau may justly be called the James Madison of Canada, it being doubtful in either case that a constitutionally entrenched bill of rights would ever have been achieved without the doggedly persistent idealism and political skill of each leader.”
- Bryan H. Wildenthal, 2014
The revolution of which Barry Strayer writes, therefore, is not equivalent to the dramatic break from the past similar to the violent events that launched the United States into world affairs almost two-and-a-half centuries ago, but the culmination of a process of birth and weaning that began when the country took its first uncertain breaths and was only fully completed when the constitution was patriated in 1982. More specifically, it concerns the passage of the Charter of Rights and Freedoms (roughly analogous to the American Bill of Rights―the first ten amendments to its constitution that was ratified and adopted on December 15, 1791). The Charter was not merely a more robust version of Diefenbaker’s Bill of Rights. It was a critical turning-point in Canadian history for it, more than any other single event in Canadian political history, altered the fundamental power balance within Canadian institutions and represented the importation of an important element of American constitutional practice. Although, in Charter cases, the Supreme Court has displayed deference to the concept of parliamentary sovereignty when, for example, it has struck down some statute but referred it back to the Parliament with instructions to “fix” rather than to abolish the law, the fact remains that the court has been given and has shown itself willing to exercise (politely) the power to remedy parliamentary actions that violate the Constitution Act and overstep its legitimate boundaries.
John George Diefenbaker was Prime Minister of Canada from 1958 to 1963. His first administration began with the largest electoral victory in Canadian history (winning 208 out of 265 seats, albeit with just over 53% of the vote). It ended badly after a series of missteps, a hopelessly divided cabinet, a plunge in personal and party popularity and, arguably, the active support of the popular American president John F. Kennedy for Diefenbaker’s rival, Lester B. Pearson. The triumph of 1958, however, was based on “the Chief’s” prairie populism and his rousing, if often ungrammatical and occasionally unfathomable, rhetoric honed as a criminal defence attorney in Saskatchewan. He was nothing if not a captivating speaker and his heart, I think it fair to say, was in the right place when it came to civil liberties and the legal rights of all citizens. So it was that he produced and passed the Canadian Bill of Rights in 1960. It contained the usual inventory of individual rights including freedom of speech and religion and some promising talk about freedom from discrimination and access to due process of law. The problem was that it was a parliamentary statute like any other. So, in subsequent cases, the courts could use it to strike down laws that discriminated against Indians (R v Drybones,  S.C.R. 282), but could also fail to use it to do the same with regard to discrimination against women (Canada (AG) v Lavell,  S.C.R. 1349). There is little doubt that Diefenbaker was well-intentioned, but his initiative was ultimately ineffective, a fact not lost on future Prime Minister Pierre Elliott Trudeau.
So, when it came time to patriate the Constitution, Trudeau took the controversial step of including, with the Constitution Act a Charter of Rights and Freedoms that would stand as the “constitutionally entrenched” fundamental law of Canada, the permanent standard against which the constitutionality of all other Canadian laws would thenceforth be judged.
No shots were fired, no lives were lost, though René Lévesque, the Premier of Québec, did complain bitterly about a knife that was stuck and then twisted in his back. In fact, not only did Lévesque refuse to give consent, but he also began a contrarian tradition in which no Québec government of any party or ideology has been willing or able to come to a constitutional agreement with the rest of Canada. Two desperate attempts by the government of Brian Mulroney to resolve the problem both failed. The Meech Lake Accord perished in 1990 when Manitoba and Newfoundland failed to ratify the agreement and caused it to lapse. Then, regardless of the almost unanimous endorsement of national political leaders, business executives and assorted experts and enthusiasts, the Charlottetown Accord of 1992 was defeated in a national referendum.
These defeats, the gold-star fear-mongers insisted, would lead to the dissolution of Confederation. In retrospect, however, regardless of the intransigence of la belle province and despite the worry that an incomplete acceptance of the Constitution and the Charter would lead to the collapse of Canadian federalism as we know it, it appears that Canada has managed to muddle along in its fashion through some closely won referenda on Québec sovereignty, a difficult reorganization of the economy under some transformative (and potentially far more dangerous) “free trade” deals, and an occasional economic and geopolitical crisis. Whether Canada’s inherent, phlegmatic pragmatism will permit as sanguine an escape from impending ecological devastation is another story, but not one that can be addressed here, especially since Canada has yet to acknowledge the threat of global environmental degradation. The real changes precipitated by the passage of the Charter, however, have taken hold and have altered the way Canadian government works. It is, then, appropriate to speak of the events of 1982 as “revolutionary.” Barry L. Strayer does speak that way, and he should know.
Barry Strayer has enjoyed a long and distinguished career in the law. After graduating from the University of Saskatchewan’s Faculty of Law in 1959, he was employed by the Department of Justice until 1963, when he commenced a teaching career at the University. In 1974, he was appointed Assistant Deputy Minister of Justice, where he was intimately occupied in the writing and in the political negotiations leading to the adoption of the Canadian Charter of Rights and Freedoms. He subsequently served as a Justice of the Canadian Federal Court of Appeal and as a Deputy Judge of the Federal Court of Canada. He has been a respected scholar and jurist, and a skillful political insider. His contribution to Canadian constitutional history has been both as a main crafter of what is arguably the most important and controversial element in the constitution and, now, as the author of the most useful guide to its origin, evolution and implementation.
Canada’s Constitutional Revolution combines a dispassionate but far from disinterested historical narrative. It features a memoirist’s insight into an unprecedented process in Canadian law, politics and governance as well as a meticulous description and explanation of the law itself. His initial involvement in the process began when he was fresh out of law school as Secretary of the Province of Saskatchewan’s delegation to the Constitutional Conference of 1960-1961. It was one of a seemingly interminable series of high-level meetings which were called to make (or to indefinitely postpone) an agreement among the provinces and the federal government on an Amending Formula, the main sticking point in the process of patriating the Constitution.
In time, Strayer became Pierre Trudeau’s “fixer” as discussion became much more acute twenty years later. Trudeau, by then, had seemingly settled on patriation (the term, says Strayer, is his) as the single spectacular event that would define and secure his legacy. By bringing the Constitution home more than a century after the passage of the British North America Act in 1867, he surely must have wanted to be redeemed in the minds of civil libertarians after his commitment to rights and freedoms had been sullied by his theatrical imposition of the War Measures Act to deal with the so-called “apprehended insurrection” perpetrated by a handful of members of the Front du liberation du Québec in October, 1970. He would never openly express regret about his decision, but he must have grasped at some level how much his reputation had, in the long run, been tarnished particularly among some of the people he most respected.
Prime Minister Stephen Harper called it ‘essential.’ The judge called it ‘fundamentally unfair, outrageous, abhorrent and intolerable.’ They were both talking about mandatory minimum jail times … she struck it down by uttering the fateful word: unconstitutional.
– A. S. Sniderman, 2012
Understanding the fatal flaw in Diefenbaker’s Bill of Rights was one thing. Trudeau certainly grasped it. He also understood that the obvious solution was to craft a constitutional document that would ensure that future governments would be prevented from committing extraordinary abuses of power by having a single, fixed document against which to test legislation.
Winning provincial support for such an innovation was quite another. Here Strayer excels. He not only brings a first-class legal mind to the political process of winning agreement on a controversial initiative, but he also adds an especially humane metanarrative that shows (at least one side of) the negotiations process. What’s more, he gives credit to others where it is due, including to F. R. Scott, Canada’s singular poet, social activist and law professor, whose vision particularly inspired Pierre Trudeau. Scott, we should recall, was an unflagging advocate of a made-in-Canada constitution which would solidify “the rule of law, the subordination of the executive to Parliament, and the power of the federal government to manage the national economy” (Macdonald, 1997: 19-20). In the end, however, the Charter lost some of Scott’s social idealism: as R. A. Macdonald (1997: 23) succinctly puts it: “The Canadian Charter of Rights and Freedoms has transformed a politics of the good into a politics of rights”―another unmistakeable mark of Americanization .
The “politics of rights”, stand in line with primordial commitments to individual liberty over the common weal. “Collective rights” are not entirely forgotten. Strayer correctly identifies Section 25 of the Charter as an especially important commitment to aboriginal peoples and their rights that date back at least to the Royal Proclamation of 1763 as well as the substantive guarantee of gender equality (Section 27) and Canada’s multicultural heritage (Section 28). In taking these steps, the Canadian Constitution went beyond its antique American model and, perhaps unintentionally, changed the face of legislative authority and legal interpretation profoundly.
The most “revolutionary” procedural consequence of the Constitution Act and The Charter of Rights and Freedoms has been the emergence of a species of “judicial activism” that may not have been anticipated by even the fiercest critics of the patriation process. As it happens, Strayer himself is not terribly happy with the turn of events. Although a self-identified social liberal, he is a bit of a constructivist himself. This is, perhaps, unsurprising, since he was a strong artisanal presence in the writing of The Charter and may not enjoy seeing his handiwork so quickly expanded in directions he might not have expected. To witness the bitter contests over the elasticity of the text can be understandably discomfiting, especially so soon after the hand-won document was formalized, authorized and proclaimed. Nonetheless, as parliamentary documents make clear, “Canada’s entrenchment of the Charter in 1982 was a conscious decision to increase the scope of judicial review” (MacKay, Hindle & Vovan, 2014). Strayer, perhaps, should not have been overly taken aback.
Somewhat ironically, given the Canadian Supreme Court’s famously expansive application of the Charter, which Strayer played a key role in framing, he frequently criticizes the court’s post-1982 progressive judicial activism.
– Bryan H. Wildenthal, 2014
So, what’s happened with the Supreme Court in light of the new catalogue of “Charter Challenges”? The record is already substantial. Perhaps the single most important case concerned women’s reproductive rights. R. v. Morgentaler,  1 S.C.R. 30, was a decision that rendered Canada’s criminalization of abortion unenforceable. Other significant cases include those that have enhanced aboriginal rights (e.g., R. v. Sparrow,  1 S.C.R. 1075] and the rights of lesbians, gays, bisexuals and transgendered people (e.g., Vriend v. Alberta, 1998] 1 S.C.R. 493), which set the precedent to legalize same-sex marriage.
More recently, despite having personally picked seven of the nine current judges on the Supreme Court, Prime Minister Harper has run into a trouble as a result of persistent efforts to overreach his authority. As I write, at least a half-dozen decisions have gone against him and possibly more will come before he is forced to face the electorate in October, 2015.
Does all this amount to judicial activism on the part of the Canadian court? The answers that many people give are apt to reflect little more than whether or not they are pleased with the decisions that the court makes. After all, the phrase “judicial activism” connotes undemocratic practices as a result of an appointed court overruling an elected legislature. That argument, of course, loses some credibility when we recall that even “majority” governments in Canada are commonly elected with well under 50% support from citizens who cast ballots. The current Conservative majority, for instance, obtained its “mandate” with less than 40% of the popular vote.
In any case, in the event that Canadians elect a more moderate government in the future, the worry over excessive judicial activism will probably recede. In the meantime, excessive anxiety is unwarranted. Canada, like other countries, is experiencing significant social, economic and environmental “challenges.” From new developments in intellectual property to concerns about constant surveillance of people’s personal information by governments and private corporations alike, adaptation to evolving circumstances is necessary. When, however, legislators fear a backlash from disgruntled supporters if they shift too far one way or another on such “hot-button” issues as physician-assisted suicide, it may turn out to be the task of the Supreme Court to guide us through such perilous times. So far, the Charter of Rights and Freedoms has not been abused, existing rights have been thoughtfully applied to new conditions. Disproportionate fears of the Americanization of the Canadian political process have not materialized, at least through the instrumentality of the law and the courts. Other concerns are not as clear.
We ought, therefore, to be at least tentatively grateful to the many public figures and the many more who toiled behind the scenes to craft the new Canadian Constitution. And, of course, among those previously unheralded contributors was Barry L. Strayer who did commendable public service and who has now written a lively, insightful, informative and, yes, “entertaining” book about one of the allegedly dullest subjects in one of the most allegedly dullest countries in the world.
The subject of his book has its flaws, to be sure, and there are some who will not accept a written constitution with an enumerated list of rights and freedoms at any time or under any circumstances. Others will be concerned that the Charter is unduly limited― wondering, perhaps, whether it will be too difficult to add economic and environmental rights to the list. Still others will remain concerned about the dubious “escape clause” in Section 33. Nonetheless, the revolution seems to have served us reasonably well as most of us have become comfortable with it and even sceptics may become “cautiously optimistic.”
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Howard A. Doughty teaches cultural anthropology and political economy at Seneca College in Toronto. He can be reached at firstname.lastname@example.org