BOOKSHELF

• F.L Morton & Rainer Knopff, The Charter Revolution and the Court Party (Broadview Press, 2000; paperback; 200pp.; ISBN 155111089x; $22.95 CDN; $19.95 US; £11.95 UK).

© F.L. Morton & Rainer Knopff, 2000. Reproduction or resale of this material is prohibited by law without the consent of the authors and Broadview Press.

Just as the 1960s are remembered by Canadian historians as the decade of Quebec's "Quiet Revolution," so the 1980s and 1990s will be remembered as the period of Canada's "Charter Revolution." Since the adoption of the Charter of Rights and Freedoms in 1982, Canadian politics has been transformed. A long tradition of parliamentary supremacy has been replaced by a regime of constitutional supremacy verging on judicial supremacy. On rights issues, judges have abandoned the deference and self-restraint that characterized their pre-Charter jurisprudence and become more active players in the political process. As Chief Justice Lamer observed in 1998, "There is no doubt that [with the adoption of the Charter] the judiciary was drawn into the political arena to a degree unknown prior to 1982."[1]

Encouraged by the judiciary's more active policymaking role, interest groups--many funded by the very governments whose laws they challenge--have increasingly turned to the courts to advance their policy objectives. As a result, policy makers are ever watchful for what a Justice Department lawyer describes as judicial "bombshells" which "shock…the system."[2] In addition to making the courtroom a new arena for the pursuit of interest-group politics, in other words, Charter litigation--or its threat--also casts its shadow over the more traditional arenas of electoral, legislative, and administrative politics. Not only are judges now influencing public policy to a previously unheard of degree, but lawyers and legal arguments are increasingly shaping political discourse and policy formation.[3] According to a cabinet-level policy professional from Ontario, "Charter awareness permeates the corporate consciousness of government policy-makers."[4]

The contrary fates of the 1960 Bill of Rights and 1982 Charter illustrate the magnitude of the Charter revolution. The Bill of Rights was an ordinary statute, which applied only within areas of federal jurisdiction. Despite these limitations, rights advocates at the time of the Bill's passage hoped it would have a significant legal impact. They were to be disappointed. Between 1960 to 1982, only five of thirty-five rights claimants under the Bill of Rights won their cases before the Supreme Court, and in only one instance did the Court actually declare a federal statute invalid.[5] By contrast, the first sixteen years of Charter-of-Rights jurisprudence [1992-1998] saw the Court ruling in favour of rights claimants in 125 of 373 Charter cases and striking down 58 statutes [31 federal and 27 provincial].[6] The Court's 1999 decision in M and H (prohibiting government use of the traditional definition of spouse as "a member of the opposite sex") potentially affects more laws than all its previous Charter rulings combined--58 federal statutes and hundreds of provincial statutes.[7] Hopes dashed under the Bill were revived and met under the Charter.

In the area of criminal procedure, the Court found that the Bill of Rights contained neither a right-to-counsel warning[8] nor an "exclusionary rule" that would prohibit the use of otherwise reliable evidence that had been obtained in a manner that violated the rights of the accused.[9] The Charter contains both, and the Court has not been reluctant to apply them stringently. It has interpreted the exclusionary rule in a manner that is at least as rigorous as the American practice.[10] Similarly, the Charter version of the right to counsel has been interpreted to discourage any police questioning of suspects in the absence of counsel[11] and to preclude judicial use of almost any form of self-incrimination at any stage in the investigative process.[12] According to a comparative study, the accused in Canadian courts now enjoy more "due process" rights than their American counterparts when it comes to using evidence such as involuntary blood samples and police line-ups.[13]

In the field of abortion rights, the Court found no conflict between the Bill of Rights and the Criminal Code restrictions on abortion. In 1976, the Court sent abortion-rights crusader Henry Morgentaler to prison for ten months.[14] When Morgentaler returned to challenge the same law under the Charter of Rights and Freedoms, the Court struck it down.[15] In five subsequent cases, courts have rejected legal claims on behalf of the unborn,[16] struck down provincial restrictions on access to abortion services,[17] and overruled attempts by welfare agencies to provide protection for the unborn.[18]

With respect to issues of racial and sexual discrimination, the Court said that the right to "equality before the law" in the Bill of Rights required only equal application and administration of laws, not equal laws, and upheld a law that clearly discriminated against Native women.[19] The Charter's equality rights, by contrast, have been read to prohibit not just clearly discriminatory laws, but also laws that, precisely because they treat everyone the same, have an "disparate" impact on some groups, [20] an interpretation whose breadth again surpasses that of its American counterpart.[21] Equality rights have even been invoked to prevent the repeal of legislation. When the government of Ontario fulfilled a campaign promise and repealed portions of the preceding government's pay equity law, the repealing legislation was deemed to infringe the Charter's equality rights.[22]

Paralleling the dramatic shift from Bill-of-Rights to Charter jurisprudence has been a new approach to remedying constitutional infirmities. Historically, Canadian courts have limited themselves to "negative" remedies: declarations that a government statute is invalid or that a government must cease behaviour found unconstitutional; to do more was considered undue judicial encroachment on legislative and executive functions. Under the Charter, the Supreme Court has sanctioned judicially ordered "affirmative remedies." That is, they no longer just tell policymakers what they may not do but also what they must do. Courts now order legislatures to spend money on matters that would otherwise not receive any.[23] They determine when, and to what extent, minority language school boards must be established.[24] They have ordered provincial governments to create judicial compensation committees to determine salary increases for judges.[25] Courts have even bypassed the legislative process altogether and rewritten legislation themselves to expand the scope of social benefit programs.[26] In its 1998 Vriend ruling, for example, the Supreme Court read "sexual orientation" into the list of prohibited grounds of discrimination in Alberta's Human Rights Act.

In a word, the courts became much more "activist" after the Charter's advent in 1982. "Judicial activism," it is true, has become a loaded and hotly disputed term, with almost as many meanings as there are people who use it. But labels are needed for the judicial "readiness to veto the policies of other branches of government" which, after 1982, replaced the contrary inclination to defer to the other branches.[27] Whatever other meanings they may have acquired, "activism" and "self-restraint" are admirably suited to designate these contrary judicial dispositions, and have long been used in that way. We are not inclined to invent new [and inevitably more awkward] labels.

In addition to being more "activist," in the sense of squarely opposing the other branches of government, the courts have also been "innovative" in interpreting laws they uphold. In Butler, for example, the Court rejected "freedom of expression" claims and upheld the censorship of obscenity; it did so, however, on the basis of what everyone acknowledges was a novel, feminist understanding of the censorship law in question. No longer would the law be interpreted as a bulwark of public morality against sexual depravity; it would now be seen primarily as a way of protecting women and children against male oppression. Consensual "erotica" would thus be distinguished from the objectification of women for the pleasure of men. Catherine Mackinnon, a leading U.S. feminist, characterized Butler as "a stunning victory for women…[making] Canada the first place in the world that says what is obscene is what harms women, not what offends our values."[28] Similarly, in its 1995 Egan decision, the Court upheld the challenged legislation even as it added sexual orientation to the list of prohibited grounds of discrimination in section 15 of the Charter[29] The Court thereby laid the groundwork for its subsequent activism on behalf of gay rights in Vriend [1998] and M and H [1999]. Thus, even when courts uphold legislation, they can have significant policy influence.

Until recently, many well-placed observers--including both Charter enthusiasts and Charter skeptics--confirmed the revolutionary character of Charter-inspired change, including increased judicial activism. On the tenth anniversary of the Charter, Chief Justice Lamer described the adoption of the Charter as "a revolution on the scale of the introduction of the metric system, the great medical discoveries of Louis Pasteur, and the invention of penicillin and the laser."[30] Five years later, on the Charter's fifteenth anniversary, he was similarly effusive. "Thank God for the Charter," Lamer proclaimed. "[People] just don't realize what it would be like if we didn't have these rights."[31] Similarly, constitutional scholar Patrick Monahan observed that in 1982 the focus of debate was whether the Charter transferred too much power to the courts, while in the early 1990s--with the call for a charter of social rights--the debate became whether to transfer still more power.[32] The same conference at which Monahan made these remarks saw Peter Hogg, one of Canada's foremost constitutional experts, referring to the "tidal wave of rights consciousness that is engulfing the country" and "has permeated the consciousness of the current Supreme Court justices."[33] Cataloguing the convulsions in recent Canadian politics--the failed Meech Lake Accord and the emergence of Reform and the Bloc Quebecois as political forces--Jeffrey Simpson suggested that they could not be understood without reference to the Charter.[34]

The inevitable cost of political prominence is, of course, becoming the object political attack. The courts are not immune to this "iron law" of political life. If, to repeat Chief Justice Lamer's formulation, the courts have been "drawn into the political arena to a degree unknown prior to 1982," we should expect to see accompanying challenges to their policy influence. And, in fact, there has been a considerable rise of "court bashing." Several newsmagazines have run feature stories castigating the Supreme Court for excessive activism.[35] Critics have urged the use of the Charter's section 33 "notwithstanding clause" to override controversial court decisions dealing with gay rights[36] and child pornography.[37] Two of the premiers who helped write the Charter in 1981--Peter Lougheed and Allan Blakeny--have similarly endorsed the dusting off of section 33.[38] One province--Alberta--has pledged to use the notwithstanding power in response to any attempt by the courts to impose same-sex marriage and has introduced legislation to hold a referendum on any other use of section 33.[39] Alberta[40] has also joined the Reform Party,[41] The Globe and Mail,[42] the National Post,[43] several academics[44] and one retired Supreme Court justice[45] in calling for a more public and accountable appointment process for Supreme Court justices. These challenges to the courts are themselves a sure sign of the judges' more influential policy role.

It would be a mistake to exaggerate the political opposition to judicial power. In the abstract, the Charter remains immensely popular with the Canadian public. In 1987 and again in 1999, national surveys found that 82 percent of Canadians thought that the Charter was a "good thing."[46] In the same surveys, 62 percent expressed greater confidence in courts and judges than in legislatures and politicians when it came to having "the final say" on rights issues.

Still, the growth of "court bashing" appears to have had some effect. In a 1999 survey, Canadians divided evenly (42% to 42%) on the proposition that "the right of the Supreme Court to decide certain controversial issues should be reduced." More dramatically, only eight percent of the respondents supported the status quo of unilateral prime ministerial appointment.[47]

These developments have caught the concerned attention of judges. Based on interviews with 101 appellate court judges between 1991 and 1995, Greene et al. reported that all but two "now admit to having at least some lawmaking role," but that half "were clearly uncomfortable with this newly visible role, as reflected by their responses to the 'crisis of legitimacy' question." This concern did not affect the Supreme Court, however. All five of the Supreme Court justices interviewed in the study "disagreed with the proposition that the Charter had created a crisis of legitimacy for the court."[48]

Since Greene's interviews, the Supreme Court has woken up. If Chief Justice Lamer thanked God for the Charter in 1997, a year later he worried that such Charter piety was not widespread enough. Addressing the 1998 annual meeting of the Canadian Bar Association, Lamer noted the Court's rights decisions have become "a matter of considerable public debate and controversy" and complained that "the tradition of judicial silence" forbids judges to reply to their critics. Worried that "the judiciary has no voice and no champion," he wondered "whether judges . . . should be rolling up their sleeves . . . and involving themselves in these public discussions more directly." [49]

Where Justice Lamer got the idea that the judiciary lacked champions is difficult to imagine. Defenders of judicial power in recent years have always outnumbered critics. Moreover, even the most controversial decisions regularly attract positive as well as negative reactions. Anyone who canvasses the commentary on the 1998 Quebec secession case, for example, would conclude that the Court's judgment received more praise than blame. Or consider Vriend, the Court's controversial 1998 gay-rights decision, which was as strongly defended in some quarters as it was criticized in others. The same is true of almost any case one cares to mention. To say that judges should be free to speak out publicly because they lack defenders is nonsense.

It is equally nonsensical to suggest that the tradition of judicial silence prevents judges themselves from replying to their critics. Judges may not engage in public controversy outside their courtroom, but they are far from silent public figures. They speak through their judgments, and those judgments provide ample opportunity to reply to critics.[50]

In any case, there has been no lack of response to the challenges brought by Charter sceptics. For example, Lorraine Weinrib, a University of Toronto law professor, insists that the Court's policymaking is mandated by the Charter itself. In an article aptly titled "The Activist Charter," Weinrib writes that, "The Charter is unequivocal in departing from the values of a stable, hierarchical, paternalistic and patriarchal society."[51] "The Charter," she continues, "thus transformed the values and institutional responsibilities at the core of Canadian constitutionalism."[52] By Weinrib's account, the Supreme Court has only been doing what the Charter requires it to do.

Elaborating on this theme, Supreme Court Justice McLachlin, in a speech in April, 1999, suggested that legislatures were perfectly free to implement the new Charter values, and that judicial activism would be necessary only if they failed to do so. Experience shows, she argued, that when legislatures duck serious issues, courts "move in to fill the vacuum."[53] A couple of months later, Justice Lamer made the same point. "If legislators choose not to legislate [on divisive issues]," he said, "that's their doing. If they prefer to leave it up to the court that's their choice." Noting that "a problem is not going to go away because legislators aren't dealing with it," Lamer thanked God [yet again] that the Court was there to step into the breech. "People say we're activist," he concluded, "but we're doing our job."[54] But just why must judges act when legislatures fail to do so? As a National Post editorial put it, when politicians "avoid controversial issues, such as homosexual rights or doctor-assisted suicide, or child pornography," they "are taking a stand--for the status quo."[55] Justices Lamer and McLachlin do not explain why a legislative stand supporting the policy status quo is ipso facto an impermissible option.

A somewhat different approach is to deny that the courts have in fact been activist in their Charter decisions. Citing a 1999 statistical study of Supreme Court Charter decisions, Patrick Monahan observed that "when you look at the overall record, it's difficult to see where the court is usurping the role of the legislature . . .. If anything, they could be faulted in some cases for not being active enough."[56] For example, of the 98 decisions handed down by the Court between 1996 and 1998, 12 invalidated statutes. Nor is the longer-term view much different: over the Charter's first 16 years, only 58 of 373 Supreme Court Charter decisions [16 percent] struck down statutes. For Monahan, this does not amount to undue judicial activism. Likewise, Mary Eberts, a prominent feminist litigator, told a Toronto conference in April, 1999 that prior to the 1998 Vriend ruling, the Court's "policy of judicial deference to the legislature had become so pronounced that it almost seemed to make the Charter disappear. She went on to praise the Vriend judgment for bringing us "back from the brink of a potentially disastrous policy of undue judicial deference to legislative action."[57]

In this view, even if Justice Lamer was right in saying that the courts have been "drawn into the political arena to a degree unknown prior to 1982," they still haven't been drawn in very far. In effect, if the baseline for political involvement is almost zero--as it was during the Bill-of-Rights era--an increase that is huge in proportional terms may nevertheless be quite small in absolute terms. Fifty-eight statutory nullifications by the Supreme Court in the first 16 years under the Charter sounds immense in comparison to 1 such nullification in 22 years under the Bill of Rights, but it is still only 16 percent of 373 Charter cases. In other words, whatever increase in activism there has been is not nearly enough.

Upon closer inspection, however, Monahan's analysis understates the Court's activism by counting only cases in which the courts struck down laws. If, as we have argued, judicial activism designates opposition to the policies and actions of the other branches of government, it includes more than the nullification of statutes. For example, approximately 54 percent of the Supreme Court's caseload is drawn from the area of criminal law enforcement.[58] Here, the Court's "search and seizure" and "right to counsel" rulings have transformed pre-trial investigative procedures, to the chagrin of the police and to the delight of criminal lawyers and their clients. Although this jurisprudence is clearly activist, many of the relevant cases overrule police practices rather than laws, and are thus not counted in Monahan's activism statistics. Had Monahan counted them, his activism figures would have been higher. Similarly, granting Monahan's definition of activism, the rate at which statutes are nullified should be based not on all Charter challenges but only on those actually involving challenges to legislation. Counting just Charter challenges to statutes over 16 years, the "nullification rate" is 32 percent (58/183), not 16 percent (58/373).[59] In addition, Monahan's concentration on the nullification of statutes fails to account for cases like Butler and Egan, which, as we have seen, involve considerable policy innovation in the very course of upholding a statute. Finally, global assessments of activism and innovation mask concentrations of judicial policymaking in certain areas. For example, a study of 47 cases involving feminist issues found a success rate of 70 percent.[60] Similarly, pockets of activism and innovation exist in litigation involving aboriginal rights,[61] language rights,[62] and gay rights,[63] Indeed, as we noted above, the Court's gay-rights ruling in M and H -- a "same sex spouse" decision--lays the groundwork for invalidating hundreds of federal and provincial laws.[64] A single blockbuster case like this renders denials of judicial activism problematic.

With these qualifications in mind, let us for the sake of argument concede the claim that judicial activism and innovation represent only a small proportion of the courts' work. It is nevertheless a proportion significant enough to attract political interests to the courtroom much more often than in the past. It doesn't take a bonfire to attract moths; a small flame will do. The few sparks of activism and innovation generated by the Bill of Rights never ignited a flame of any size, and those interested in litigating policy change under that document soon gave up. The fact that the first 16 years of the Charter saw roughly ten times as many cases go to the Supreme Court as went there under the Bill of Rights shows that the current flame of judicial policymaking is bright enough to make the courtroom an attractive political arena. As Peter Russell has demonstrated in the case of federalism litigation, one doesn't have to be certain of victory to be attracted to the courtroom; to the contrary, legal uncertainty tends to fuel litigation more than legal certainty.[65] A reasonable prospect that the Court will significantly influence an important policy decision--in either direction on the partisan continuum--is enough to fill the courtroom. And that prospect certainly exists under the Charter in a way that it didn't under the Bill of Rights.[66]

It is extensive recourse to the courtroom as a policymaking arena, not necessarily the particular outcomes of litigation, that constitutes the heart of the Charter revolution. Must interpreters for deaf patients be funded as a public health care benefit?[67] Should "spousal" benefits be extended to gay and lesbian couples?[68] May women go topless on city streets?[69] Is euthanasia permissible?[70] Do we have the right to possess kiddie porn?[71] To these and a host of similar questions, the judiciary is now certain to supply at least part of the answer. Sometimes rights claimants win in court; sometimes they lose; sometimes they do a little of both. Sometimes the judiciary has the predominant influence in a litigated policy area; sometimes legislatures do; sometimes both have some influence. Regardless, policymaking is "judicialized," "legalized," and conducted in the vernacular of "rights talk" to a greater extent than ever before. Therein lies the Charter Revolution.

The Charter revolution has unfolded so quickly that it is hard to gain perspective on it. So much is so new that we still do not have the concepts to describe what is happening. As usual, understanding and vocabulary lag behind action. This book analyzes an important facet of the Charter revolution that remains inadequately understood: its social underpinnings. The Charter revolution is driven only partly by the constitutional document itself. More important are the Charter's judicial interpreters; and more important still is a coalition of social interests--what we call the Court Party--that has promoted the growth of judicial power.

The Role of Judges

The Charter itself is not so much the cause of the revolution as the means through which it is carried out. The Declaration of Independence did not "cause" the American Revolution, nor the Declaration of the Rights of Man the French Revolution. A revolution cannot occur without leaders and the support of interested classes. Judges are professionally obliged to declare that the Charter "requires" their decisions, but this kind of formal legalism is hardly persuasive outside the courtroom. As we shall see in detail in the next chapter, the Charter rarely required the full extent of legal transformation undertaken in its name. Something in addition to the document is at work.

Judges themselves are at work, of course. Precisely because their decisions are generally not required by the Charter, judges are more important to explaining the Charter revolution than is the document itself. In 1983 at the dawn of the Charter era, the late Eugene Forsey, the pre-eminent constitutional scholar of an earlier generation, predicted that the Charter would be "a field-day for crackpots . . . a headache for judges . . . [and] a goldmine for lawyers."[72] Forsey was certainly right about crackpots and lawyers, but he was wrong about judges. Far from giving judges a headache, the Charter has given them a second opportunity--the Bill of Rights was the first--to succumb to the seduction of power. It is the different responses of two generations of judges--especially Supreme Court judges--to this seduction that explain the very different fates of the 1960 Bill of Rights and the 1982 Charter of Rights and Freedoms.

The seduction of power certainly gave a headache to an earlier, more self-disciplined generation of judges--a generation steeped in the doctrine of parliamentary supremacy. That generation, with only an occasional slip, resolutely resisted the temptation. The judges' interpretation of the 1960 Bill of Rights deprived it--and thus the judges themselves--of any real influence on public policy.

Judicial restraint under the Bill of Rights was consistent with Ronald Cheffins' 1966 description of the Supreme Court as "the quiet court in the unquiet country. [73] Similarly, in 1975, on the one hundredth anniversary of the Supreme Court of Canada, the historian Kenneth McNaught, wrote that "Our judges and lawyers, supported by the press and public opinion, reject any concept of the courts as a positive instrument in the political process."[74] Also in 1975, the late Chief Justice Bora Laskin, one of the more activist judges of his time, came to the same conclusion. "How foreign to our constitutional traditions, to our constitutional law, and to our concept of judicial review," he wrote, "was any interference by a court with the substantive content of legislation."[75] A decade later, just as the Supreme Court was about to take an activist turn, Dalhousie law professor Wayne Mackay similarly observed that "the Canadian judiciary has historically been quite different from its counterpart in the United States [in that] Canada's judges do not have an activist tradition."[76]

On this basis, J.R. Mallory confidently predicted that Canadian courts "will be fairly circumspect in using the Charter to nullify the acts of governments and legislatures."[77] Law professors Berend Hovius and Robert Martin also predicted that the Charter "would not transform the Canadian system of government." They pointed out that "the approach of the court to the Canadian Bill of Rights was characterized by restraint, a restraint which was demanded by neither the status nor the wording of the Bill." Believing that there was "nothing in the Charter which requires the abandoning of this tradition," they predicted that Supreme Court, would "strive to ensure that the legislatures continue to bear the ultimate responsibility for determining social policy…."[78]

We have seen how wrong such predictions were. By 1982 a new generation of lawyers had entered the legal profession. While still a minority, they were strategically situated in the law schools, and, through their academic commentary, enjoyed a privileged position for influencing judges, especially appeal court judges. Having carefully observed the development of judicial power south of the border, they saw in the Charter an opportunity for empowering Canadian courts as an agency of political reform. After some initial hesitation by lower-court judges, the Supreme Court--led by recent Trudeau appointees--followed the commentators' advice and seized the opportunity.

Judges often insist that their new activism is required by the Charter itself.[79] In 1985, for example, Justice LeDain proclaimed that the Charter's constitutional status--as compared to the purely statutory Bill of Rights--made it "a new affirmation of rights and freedoms and of judicial power and responsibility in relation to their protection." In 1997, Chief Justice Lamer conceded that under the Charter "very fundamental issues of great importance to the kind of society we want are being made by unelected persons." But, he asked, "that's a command that came from where? It came from the elected [Parliament]. We're heeding the command of the elected. . . . that's their doing, that's not ours."[80]

As a justification of judicial activism and innovation, this line of thought is persuasive only to an audience suffering from historical amnesia. There are numerous historical and contemporary examples of judicial self-restraint in the face of constitutionally entrenched rights.[81] The Swedish constitution explicitly authorizes its Supreme Court to declare legislation invalid, but the Court has resolutely refused to do so.[82] Even in the United States, the birthplace of judicial review, the Supreme Court declared only two federal laws invalid during its first seventy-five years. Indeed, under Chief Justice Rehnquist, the contemporary American Court initiated a new period of judicial self-restraint, just as the Canadian Court took off in the opposite direction. Clearly, the activist or restrained exercise of judicial review under an entrenched constitution is more an attribute of the judges than of the document being interpreted.

The reverse is also true: if constitutional documents do not inevitably generate activism, neither is activism precluded by the absence of such documents. For example, high courts in France,[83] Israel[84] and most recently Australia[85] have engaged in considerable judicial activism in defense of rights without any explicit constitutional document. Closer to home, the Canadian Supreme Court was more activist in its defense freedom of speech and religion during the 1950s, when we had no explicit rights-protecting document, than it was under the 1960 Diefenbaker Bill of Rights.[86] In sum, an explicit bill of rights is neither a necessary nor a sufficient condition for judicial activism. Where they exist, moreover, constitutional documents are generally vague enough to allow both activist and restrained interpretations, and the Charter is no exception.

We do not mean to suggest that the absence or presence of constitutional documents make no difference at all. As Samuel Bottomley has demonstrated, although innovative judges can be very creative even without a constitutional bill of rights, they remain somewhat more cautious than their activist counterparts under an entrenched bill.[87] Similarly, where a constitutional document exists, groups without an explicit foothold among its provisions may have less legal leverage. In Canada, for example, environmentalists and property rights enthusiasts do not have the kind of constitutional platform that, say, feminists or ethnic groups enjoy under the Charter. Gregory Hein's finding that feminists have indeed enjoyed more litigation success than have environmental groups in the post-Charter era thus comes as no surprise. Hein is quite right in attributing the feminist litigation advantage to "the benefits of fully entrenched constitutional guarantees."[88] Giving innovative judges more confidence, explicit constitutional provisions do tend to extend the scope and range of their policy involvement. Still, as we have just noted, entrenched documents do not guarantee judicial activism. The Charter may enhance the policy involvement of activist judges, but it rarely requires their policy innovations. Judges drive the Charter, not vice-versa.[89]

The Court Party

Judges do not drive the Charter alone, however. It would be as absurd to say that Canadian judges are alone responsible for the revolution as it is to say that the Charter is itself the sole cause. Left to its own devices, the judiciary is hardly inclined to be a hotbed of political ferment. Like the Charter itself, judges are as much a means as a cause of the rights revolution in Canada. While judges are in the vanguard of the revolution, they are being pushed as much as they lead. They are being pushed by what we call the "Court Party." The Charter revolution, in other words, is characterized by the rising prominence in Canadian public life of both a policymaking institution (the judiciary) and its partisans (the Court Party). As Mark Silverstein has noted "Political power [including judicial power] is inevitably a function of constituency."[90]

Using a different label, Charles Epp comes to a similar conclusion. A rights instrument by itself, Epp argues, is not likely to have much practical effect. Rights become practically powerful only where there exists a "support structure for legal mobilization"[91] with at least three components: rights-advocacy organizations, government or foundation funding of test cases, and the availability of sympathetic and competent lawyers.[92] While Epp is more sanguine about the consequences than we are, we share his view that a rights-litigation infrastructure has been the necessary precondition of the surge in judicial power since the adoption of the Charter. Indeed, we argue that Epp has not gone far enough in identifying the actors and institutions that have contributed to the growth of judicial power in Canada.

Alan Cairns has coined the term "Charter Canadians" to describe many of the groups that form part of the Court Party coalition. Some of these groups were active in shaping the Charter's content in 1980-81 and then contributing the support necessary for its adoption; others sprang up in response to the Charter. They all seek to constitutionalize policy preferences that could not easily be achieved through the legislative process.

The Canadian Civil Liberties Association (CCLA) is one of the key interest-group members of the Court Party. At the stage of Charter-drafting, CCLA representatives lobbied hard to change the wording of certain key passages in the legal rights sections of the Charter. They recommended that the right against "illegal" search and seizure be re-written as the right against "unreasonable" search and seizure. They urged the government to broaden the right to counsel to include the "right to be informed" of this right. The government's original version of the Charter preserved the Canadian [and British] practice of allowing illegally obtained evidence to be used at trial. The CCLA wanted this rewritten to exclude such evidence. The CCLA joined feminists and other rights-advocacy groups in calling for the rewording of the section 1 of the Charter, which permits "reasonable limits" on rights, so as to place a greater burden of proof on governments.[93] When the Trudeau government unveiled amendments to the draft version of the Charter in January, 1981, Walter Tarnopolsky, the President of the CCLA, exulted: "It's incredible. . . . [I]t appears that they have given us just about exactly what we asked for."[94] The CCLA has gone on to become one of the most frequent interveners in Charter cases before the Supreme Court of Canada.[95]

The CCLA is not the most frequent intervener, however. It ranks second to The Women's Legal Education and Action Fund (LEAF). Like the CCLA, feminists heavily influenced the wording of key Charter sections. Representatives from the National Action Committee on the Status of Women (NAC) derided the original version of section one of the Charter as the "Mac truck clause," alleging that it created such a large loophole than any exception could be "driven through it."[96] Like the CCLA, feminists successfully urged the rewording of their favourite Charter provision--section 15. Moreover, when the section 33 override clause was added to the Charter, feminists mounted a furious and successful campaign to add section 28, exempting the principle of the equality of the sexes from the override.[97]

Feminist groups then sought ways to take advantage of the Charter's broad wording. In 1984 the Canadian Advisory Council on the Status of Women published a study calling for the creation of a single, nationwide "legal action fund" to coordinate and pay for a policy of "systematic litigation" of strategic "test cases."[98] The study reported that with the adoption of the Charter, "we find ourselves at the opportune moment to stress litigation as a vehicle for social change."[99] A year later LEAF was launched, and it has gone on to become not only the most frequent[100] but also the most successful[101] non-government intervener in cases before the Supreme Court.

What is true of LEAF is true of a rapidly growing list of organizations with a similar political genesis: the Charter Committee on Poverty Issues, Equality for Gays and Lesbians Everywhere (EGALE), the Canadian Prisoners' Rights Network, Canadian Committee on Refugees, the Equality Rights Committee of the Canadian Ethnocultural Council, to name just some. These groups have been organized in response to the adoption of the Charter, and they all litigate or intervene in Charter cases, usually with the financial support of sympathetic public bureaucracies.[102]

Such interest-group litigation differs from that of the individual litigant who employs constitutional arguments primarily as a means to protect his own liberty or other interests, and for whom the broader policy consequences of a judicial opinion are unimportant. For systematic litigation groups, the reverse is true: the primary focus of their interventions is to change the meaning of constitutional rules and the policy outcomes shaped by these rules. The actual dispute becomes just a vehicle for pursuing the policy objective. For example, one of LEAF's early Charter triumphs was Andrews v Law Society of British Columbia.[103] Yet when LEAF intervened in this landmark section 15 case, it did not even take a position on the outcome of Andrews' dispute with the Law Society. Andrews, a male non-citizen, claimed that the law permitting only citizens to become lawyers in British Columbia was unconstitutionally discriminatory. LEAF cared not a whit about Andrews's fate. It was concerned only to ensure that the Supreme Court adopt a definition of equality rights and discrimination that would best support LEAF's own policy agenda in future litigation. It is systematic litigation groups that lie at the heart of the Court Party. While Canadian interest groups occasionally used the courts prior to 1982, systematic political litigation has increased dramatically under the Charter.

In addition to litigating on behalf of their respective policy agendas, Court Party groups use the Charter in a variety of other ways. They employ the Charter and its judicial glosses as symbolic resources in the normal course of political lobbying. In an ongoing campaign of "influencing the influencers," they attempt to affect Charter interpretation through Charter scholarship, the politics of judicial appointment, and judicial education seminars after appointment.[104] A well-organized group pursues the judicial protection and expansion of its Charter "turf" on all of these fronts simultaneously. This is the process aptly described by Alan Cairns as "Charter imperialism," whereby the Charter's "various clientele seek to extend its jurisdiction."[105] What we call the Court Party is the agency of this "Charter imperialism."

Needless to say, the Court Party is not a party organized to compete for elected office, like the Liberals or the Reform Party. It is more a loose coalition of interests than a disciplined political machine. Indeed, Court Party interest groups are sometimes policy enemies rather than allies. Feminists and civil libertarians, for example, have found themselves on opposite sides of such issues as rape laws and censorship of pornography.[106] Similarly, feminists and aboriginal groups have crossed swords on the question whether the Charter should apply to aboriginal forms of self-government.[107]

The Court Party coalition is not so fragmented, however, that its coherence or identity exists mainly in the mind of the analyst; when galvanized into action, it can pull together as a self-conscious and highly effective political force. During the debates over the Meech Lake Accord (1987-90), for example, a variety of Charter groups formed the "Canadian Coalition on the Constitution" to oppose the accord. At the time, Deborah Coyne, Chairperson of the Coalition, provided an apt [self] definition of what we are calling the Court Party. She went so far as to describe it as a new "power structure" in Canadian society.

The Charter's appeal to our non-territorial identities--shared characteristics such as gender, ethnicity and disability--is finding concrete expression in an emerging new power structure in society. ... This power structure involves new networks and coalitions among women, the disabled, aboriginal groups, social reform activists, church groups, environmentalists, ethnocultural organizations, just to name a few. All these new groups have mobilized a broad range of interests that draw their inspiration from the Charter and the Constitution . . . . [108]

The efficacy of this "emerging power structure" cannot be doubted, for it achieved what was unimaginable only a decade earlier--the defeat of a constitutional amendment that enjoyed the support of all eleven first ministers and of the leaders of both opposition parties.[109] While the coalition of Charter groups may initially have been an alliance of convenience and circumstance, it is now as entrenched in Canada's ("small c") constitution as the Charter is in the ("large C") Constitution.

The involvement of Charter Canadians in the politics of formal constitutional amendment is paralleled by their enthusiastic participation in the less obvious but generally more significant process of informal constitutional amendment that goes on every day in the appeal courts of this country. While formal constitutional change is purposely made difficult to achieve and is thus rare, real change can and does occur in an incremental fashion through judicial interpretation. This is especially true for a new constitutional text like the Charter, where each judicial interpretation is analogous to a mini-amendment.[110] The reasoning of judges adds new constitutional meaning that can expand or contract the "rights"--and thus the policy influence--of the groups involved. Since it is the courts that most directly influence the content and scope of "their" Charter provisions, the Charter groups have a vested interest in judicial power. As self-described "outsiders" who believe that the traditional institutions of parliamentary democracy and federalism have failed them, they look to the courts for more favourable policy outcomes. Certainly, these groups and their academic supporters have become the chief exponents judicial power in Canada, though not at the cost of abandoning more traditional political strategies.

In sum, part of what unites the various elements of Coyne's "new power structure"--and what leads us to call it the "Court Party"--is an interest in the judicialization of politics. Parties are partisan, and the Court Party is a partisan of the courts.

To speak of the partisans of the judiciary may seem a little strange at first, but only because we have become accustomed to thinking of the courts as non-political bodies. With respect to other governmental institutions there is nothing at all remarkable in speaking of their partisans and of the resulting inter-institutional politics. The federal and provincial governments in Canada, for example, certainly have their respective partisans, and the politics of centralization versus provincial rights has been a perennial feature of Canadian public life. The same is true in other federal systems.

The executive and legislative branches of government also attract partisans in battles against each other. Violent rebellions broke out in 19th century Canada over the question of whether to make the executive "responsible" to the legislature by requiring it to maintain the "confidence" of a majority of legislators. Today the tables have turned: worrying about the overly disciplined parties and cabinet-dominated legislatures produced by "responsible government," we now wonder whether it might be better to stop treating every major legislative vote as a test of "confidence." Similarly, in the United States, while it was once common to celebrate or lament an "imperial presidency,"[111] observers later became more likely to debate the merits of an imperial judiciary[112] or an imperial Congress.[113]

The different political institutions in any regime attract partisans because institutions are not neutral arenas in which substantive political battles are fought. Different institutions privilege different types of political resources, which are not equally distributed amongst social interests. Moving responsibility for a policy decision from legislatures to courts, for example, hurts interests with superior electoral clout but helps interests with better legal resources (e.g., sympathetic judges, skilled lawyers). Because institutions shape the political process in ways that enhance the prospects of certain outcomes and diminish the prospects of others, political partisans will thus gravitate to institutions that appear most open to their policy preferences or most closed to the preferences of their opponents. "Far from being external to the substance of politics, institutions are often the very things at stake in political struggles; politics is as much about institutions as it is constrained and channeled by them."[114]

To repeat, the notion that institutions attract political partisans is commonplace with respect to all governmental institutions but the courts. The idea of a court party seems outlandish to the extent that courts are perceived as non-political institutions. But the courts have never, in fact, been entirely non-political,[115] and this is hardly the first time that their association with partisan factions has been noticed.

In the decades preceding the Great Depression, business elites in both Canada and the United States successfully used litigation to slow the advent of the emergent welfare state. The proponents of laissez-faire economics turned to the courts to argue that many of the new regulatory and redistributive policies violated their freedom of contract or exceeded the legislative jurisdictions assigned by the federal division of powers. In short, business interests successfully defended their policy interests by cloaking them in legal garb. It turns out that the modern court parties in both Canada and the United States had earlier predecessors.

Sceptics on the Left were quick to dispatch the veil of legalism cast over public policy by the earlier court parties of the right. The sceptics argued persuasively that it was not law but judicial sympathy with business interests that fuelled anti-welfare state judgments. In the United State, the leftist opponents of judicial power brought right wing judicial activism to heel in the famous court packing crises of 1937. President Roosevelt threatened to expand the size of the Supreme Court from 9 to 15, and to fill the new vacancies with pro-New Deal judges. This threat was never carried out, partly because the Supreme Court quickly backed down. For the next decade and a half, the Supreme Court, gradually filled with handpicked Roosevelt confidants and New Deal loyalists, practiced the newfound virtue of judicial self-restraint. Abandoning a century's worth of constitutional law, the Roosevelt Court allowed Democratic presidents and congresses to build the American welfare state. In Canada, leftist criticism of judicial opposition to the welfare state contributed to the 1949 abolition of appeals to the British Judicial Committee of the Privy Council. Again, the result was greater judicial openness to the modern interventionist and regulatory state. Between 1950 and 1972, for example, the Supreme Court of Canada did not strike down a single federal law.[116]

In time, however, those who criticized judicial power have become its partisans. By the 1980s, the US Democratic Party, which during its Roosevelt heyday had been vociferous in its criticism of judicial power, "became the advocate and champion of a liberal agenda institutionalized by the Warren Court,"[117] while Republicans, who had earlier sided with the courts, took over Roosevelt's "court curbing" agenda. According to Silverstein, the weaker the Democrats became politically, the more they relied on the Supreme Court. "To an extraordinary degree," he writes, "the judiciary has [permitted] the New Progressives [within the Democratic Party] to substitute court victories for electoral failures."[118] This analysis is echoed by Lowi and Ginsberg:

During the 1960s and 1970s, the power of the federal courts expanded in the same way that the power of the executive expanded during the 1930s--through links with constituencies, such as civil rights, consumer, environmental, and feminist groups, that staunchly defended the Supreme Court in its battle with Congress, the executive, or other interest groups.[119]

This, in turn, is why Republican presidents nominated "conservative" judges such as William Rehnquist, Antonin Scalia, Robert Bork and Clarence Thomas for appointment to the Supreme Court in the 1980s, and why liberal Democrats fought so fiercely to defeat those nominations (successfully in the case of Bork).

Again, a similar pattern is evident in Canada. Here, too, the systematic defence of judicial power under the Charter now comes mainly from the Left--though, to be sure [and as one would expect], those of all political persuasions seek to harness judicial power to their purposes when the opportunity presents itself. And here, too, "court curbing" tendencies are found most prominently on the right. True, there are important critics of judicial power on the Left,[120] but they have had little influence on recent partisan politics. Outside of Quebec, court-curbing tendencies are found chiefly in the Reform Party and among conservative provincial politicians, journalists and academics.[121]

The current debate about judicial power, in short, is largely a reprise of the similar debate that occurred in the 1930s, with only the partisan positions reversed. We believe that the sceptics, both then and now, have a point. Indeed, scepticism of judicial power may be even more appropriate nowadays, when prominent contemporary legal theory, drawing inspiration from postmodernism, insists that the legal rationales of judges are little more than rationalizations of the power of particular interests. What interests and whose power are served by the newly reinvigorated judiciary? This should be the first question of analysis. If, to use our term, there was a "court party" backing the Depression-era assertion of judicial power, chances are that a court party also underlies the current outbreak of that power.

The political interests and dispositions at the heart of the Court Party, we contend, fall into five distinct (albeit overlapping) categories: national unity advocates, civil libertarians, equality-seekers, social engineers, and postmaterialists. We analyse these Court-Party constituencies in chapter 3.

In chapters 4 and 5 we show that the strength of the Court Party cannot be understood independently of its state connections. The Canadian state has conferred three types of resources on the Court Party: legislative, financial and bureaucratic. Chapter four elaborates the first two, while chapter 5 explores the third.

Ideas drive the Charter revolution even more than do laws, dollars, or state officials. In postmaterialist societies, knowledge is power. Chapter 6 thus examines the central role of university-based intellectuals in the Court Party. In the seventh and concluding chapter, we explain our critical assessment of both the Charter Revolution and the Court Party.

Before proceeding to our analysis of the Court Party, we devote the next chapter to the judges whose policymaking discretion the Court Party seeks to influence.

1. Address to the Canadian Bar Association, August 23, 1998; St. John's, Nfld.

2. Mary Dawson, "Oral Remarks" [Round-table Conference on The Impact of the Charter on the Public Policy Process , Centre for Public Law and Public Policy, 15-16 November 1991] [unpublished].

3. See Peter H. Russell, " Canadian Constraints on Judicialization from Without," International Political Science Review 15:2 [1994], 165-175. Also See Martin Shapiro, "Juridicalization of Politics in the United States," International Political Science Review 15:2 [1994], 101-112.

4. Julie Jai, "Oral remarks" [Roundtable Conference on the Impact of the Charter on the Public Policy Process, Centre for Public Law and Policy: York University, 15-16 Nov. 1991] [unpublished].

5. The Queen v. Drybones [1970] S.C.R. 282.

6. Data provided by James Kelly, "Charter Activism and Canadian Federalism: Rebalancing Liberal Constitutionalism in Canada, 1982 to 1997," Ph.D. Thesis, McGill University, 1998; and Patrick J. Monahan, "Constitutional Cases, 1991-1998," Paper presented at Professional Development Programme, "1998 Constitutional Cases: An Analysis of the 1998 Constitutional Decisions of the Supreme Court of Canada," Toronto, Ont.; April 16, 1999. Our figures combine Kelly's data for 1982-1997 with Monahan's data for 1998.

7. "Landmark gay ruling could affect 1,000 laws," National Post, May 21, 1999, A1.

8. Brownridge v. The Queen [1972] S.C.R. 926.

9. Hogan v. The Queen [1975] 2 S.C.R. 574.

10. R. v. Collins [1987] 1 S.C.R. 265.

11. R. v. Manninen [1987] 1 S.C.R. 1233.

12. R. v. Hebert [1990] 2 S.C.R. 151.

13. R. Harvie and Hamar Foster, "Ties that Bind? The Supreme Court of Canada, American Jurisprudence, and the Revision of Canadian Criminal Law under the Charter," Osgoode Hall Law Journal 28 [1990], 729; R. Harvie and Hamar Foster, "Different Drummers, Different Drums: The Supreme Court of Canada, American Jurisprudence, and the Continuing Revision of Criminal Law under the Charter," Ottawa Law Review 24 [1992], 39.

14. Morgentaler v. The Queen [1976] 1 S.C.R. 616.

15. Morgentaler v. The Queen, [1988] 1 S.C.R. 30.

16. Borowski v. Canada, [1989] 1 S.C.R. 342; Tremblay v. Daigle, [1989] 2 S.C.R. 530; R v. Sullivan, [1991] 1 S.C.R. 489.

17. Moore v. British Columbia, 50 D.L.R. [4th], 29.; Ref. Re Freedom of Informed Choice [Abortions] Act, 44 Saskatchewan Reports 104 [1985]; R. v. Morgentaler, [1993] 3 S.C.R. 463.

18. Winnipeg Child Services v. D.F.G., 138 D.L.R. [4th] 254 [Manitoba C.A., 1996].

19. Attorney-General of Canada v. Lavell and Bedard [1974] S.C.R. 1349.

20. Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143.

21. While the U.S. Supreme Court has read the Civil Rights Act as prohibiting systemic discrimination, it has not read the equal protection clause of the 14th Amendment to the Constitution as prohibiting such discrimination. See Rainer Knopff [with Thomas Flanagan], Human Rights and Social Technology: The New War on Discrimination [Ottawa: Carleton University Press, 1989], 58.

22. Service Employees International Union, Local 204 v. Ontario [Attorney General] [1997] O.J. No. 3563.

23. In Eldridge v British Columbia [Attorney General], [1997] 3 S.C.R. 493., the Supreme Court ruled that a British Columbia hospital's decision not to provide sign-language interpreters for deaf patients violated the equality rights of the latter, and ordered the hospital to provide such interpreters in the future.

24. Mahé v. Alberta, [1990] 1 S.C.R. 342.

25. Reference Re Remuneration of Judges of the Provincial Court of PEI; Reference re: Independence and Impartiality of Judges of the Provincial Court of PEI, [1997] 3 S.C.R. 3.

26. Schachter v. Canada [1992], 93 D.L.R. [4th] 1; Haig and Birch v. Canada [1992], 57 O.A.C. 272.; Vriend v. Alberta [1998] 1 S.C.R. 493

27. Peter Russell, Rainer Knopff and Ted Morton, Federalism and the Charter: Leading Constitutional Decisions, A New Edition [Ottawa: Carleton University Press, 1989], 19.

28. Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights [Toronto: Scribner, 1995], 229.

29. Egan and Nesbitt v. Canada, [1995] 2 S.C.R. 513.

30. As quoted by J. Sallot,"How the charter changes Justice," The Globe and Mail 17 April 1992: A11.

31. Interview with Stephen Bindman, "Thank God for the charter," Ottawa Citizen, 17 April 1997: A1.

32. Patrick Monahan, "Oral Remarks" [Roundtable Conference on the Impact of the Charter on the Public Policy Process, Centre for Public Law and Public Policy: York University, 15 November 1991] [unpublished].

33. Peter Hogg, "Oral Remarks" [Roundtable Conference on The Impact of the Charter on the Public Policy Process, Centre for Public Law and Public Policy: York University, 15-16 November 1991] [unpublished].

34. Jeffrey Simpson, "Remarks on the Impact of the Charter," Paper presented to the Round-table Conference on the Impact of the Charter on the Public Policy Process, Centre for Public Law and Public Policy: York University, 15-16 November 1991.

35. "Robed dictators: a coup from the courtroom has usurped our democracy," Rory Leishman, Next City [Fall, 1998], 34-41; "Benevolent Monarch: How the Charter has helped Antonio Lamer turn his dubious ideals into the Law of the land," Alberta Report, 21 Sept. 1998, 20-23. Also see Alex MacDonald, Outrage: Canada's Justice System on Trial [Vancouver: Raincoast Books, 1999].

36. "Expert urges use of notwithstanding clause," Calgary Herald, 2 April 1998, A2; "Notwithstanding clause: Klein ponders overruling courts on gay rights," Calgary Herald, 7 April 1998, A1; "Tory caucus under pressure to override Supreme Court of Canada ruling," The Globe and Mail, 9 April 1998, A1; "Legislatures write laws; Let's keep it that way," Peter Menzies, Calgary Herald, 8 April 1998, A14; "Court's declaration of independence should be tested," Christopher P. Manfredi, Calgary Herald, 28 April 1998, A17; "High court reopens battle between judges, politicians," National Post, 21 May 1999, A2; "Yellow-bellied politics," National Post, 21 May 1999, A19.

37. "McLellan rejects calls to overturn child-porn ruling," National Post, 2 Feb. 1999, A1; "4 maverick MPs ignore Liberal line over porn motion," National Post, 3 Feb. 1999, A7; "Making Canada safe for child porn [again]," National Post, 2 July 1999, A19.

38. "Ex-premiers call for use of Charter's 'safety-valve'," National Post, 1 March 1999, A1.

39. "Province slams door on gay marriages," Calgary Herald, 19 March 1999, A1; "Alberta government decides to say no to same sex marriages," The Globe and Mail, 19 March 1999, A4.

40. "Alberta wants Supreme committee: Courting Justice," Calgary Sun, 28 March 1999, 13.

41. "Parliament, not judges, must make the laws of the land," Preston Manning, The Globe and Mail, 16 June 1998, A23; "Reform's Judicial Agenda," Peter H. Russell, Policy Options [April, 1999], 12-15.

42. "A short reading from the book of Ruth," editorial, The Globe and Mail, 29 July 1993, A20;" A Supreme Court for a new age," editorial, The Globe and Mail, 28 Aug. 1997, A16; "Wanted: a public word with the would-be judges," Anthony Keller, The Globe and Mail, 1 Dec. 1997; "What to look for, and guard against, in a Supreme Court judge," William Thorsell, The Globe and Mail, 20 Dec. 1997, D6.

43. "Judging the judges," editorial, National Post, 10 May 1999, A15; "Appointment process undermines Supreme Court," Andrew Coyne, Calgary Herald, 16 June 1998, A18;

44. Ted Morton, "Charter changed justices role: Their selection needs review," The Financial Post, 20 Feb. 1989, 16; F.L. Morton, "To bring judicial appointments out of the closet," The Globe and Mail, 22 Sept. 1997, A19; Jacob Ziegel and Peter Russell. See Jacob Ziegel, "Merit Selection and Democratization of Appointments to the Supreme Court," forthcoming in Choices [IRPP]; and Peter H. Russell, "Reform's Judicial Agenda."

45. "LaForest favours U.S.-style public review for Supreme Court Judges," The Globe and Mail, 3 Sept. 1997, A7; "One-on-one with Mr. Justice Gerard La Forest," Cristin Schmitz, "A Supreme Challenge Met," Lawyers Weekly, 26 Sept. 1997, 1. CANNOT FIND THESE ARTICLES

46. Fletcher and Howe, "Canadian Attitudes Toward the Charter," 4, 9.

47. Joseph Fletcher and Paul Howe, "Canadian Attitudes Toward the Charter and the Court: Results of a Recent IRPP Survey in Comparative Perspective," Paper presented at the Annual Meeting of the Canadian Political Science Association, Université de Sherbrooke, June 8, 1999, 16, 23.

48. Greene et al., Final Appeal, 188.

49. Chief Justice Antonio Lamer, Address to the Annual Meeting of the Canadian Bar Association, Aug. 23, 1998; St. John's, Nfld.

50. See, for example, the Supreme Court's reply to critics in Vriend v. Alberta, 1 S.C.R. 493; 563-564.

51. Lorraine Weinrib, "The Activist Constitution," Policy Options [April, 1999], 28.

52. Weinrib, "The Activist Constitution," 28.

53. Christin Schmitz, "McLachlin traces court 'activism' to lawmakers' 'inactivism'," The Lawyers Weekly, 30 April 1999, 3.

54. Janice Tibbetts, "Politicians duck divisive issues, chief justice says," National Post, 12 July 1999, A1.

55. "Holding Court," National Post, 14 July 1999, A14. Janice Tibbetts, "Top court judges shy away from rewriting laws: study," National Post, 9 April 1999, A4.

57. Mary Eberts, "From Undue Deference to Principled Dialogue: Vriend Restores a Constitutional Perspective on Judicial Role in Charter Cases," Paper presented at Professional Development Programme, "1998 Constitutional Cases: An Analysis of the 1998 Constitutional Decisions of the Supreme Court of Canada," Toronto, Ont.; April 16, 1999.

58. Kelly, "Charter Activism and Canadian Federalism," 96 [Table 6].

59. Our figures combine Kelly's data for 1982-1997 with Monahan's data for 1998.

60. Avril Allen and F.L. Morton, "Feminists in the Courts: Measuring Interest Group Success," Paper presented at the 1997 Annual Meeting of the Canadian Political Science Association, Memorial University, St. John's Nfld.

61. Aboriginal rights cases have the highest success rate--46%--of all Charter litigation. [Kelly, "Charter Activism and Canadian Federalism," ch. 2 [Table 5], 89] Also see Hamar Foster, "Canadian Indians, Time and the Law: What Happened North of 49," paper presented at the Interim Meeting of the Research Committee on comparative Judicial Studies, August 1-4, 1993; Santa Fe, New Mexico; Peter H. Russell, "The Catalytic Role of Courts in Aboriginal Constitutional Politics: Canada in Comparative Perspective," Paper presented at meeting of the IPSA Research Committee on Comparative Judicial Studies, Université de Sherbrooke, 21 August, 1995.

62. Language and education rights cases have the second highest success rate--41%--in all Charter litigation. [Kelly, "Charter Activism and Canadian Federalism," ch. 2 [Table 5], 89]. Also, see pages 4-6 in chapter 3.

63. See Didi Herman, "The Good, the Bad and the Smugly: Sexual Orientation and Perspectives on the Charter," in David Schneiderman and Kate Sutherland, eds., Charting the Consequences: The Impact of the Charter of Rights on Canadian Law and Politics [Toronto: University of Toronto Press, 1997].

64. "Landmark gay ruling could affect 1,000 laws," National Post, 21 May 1999, A1.

65. Peter H. Russell, "The Supreme Court and Federal-Provincial Relations: The Political Use of Legal Resources," Canadian Public Policy 11[1985], 161, 164.

66. Such uncertainty has been increased by the Supreme Court's habit of qualifying its rulings with declarations that each case must be considered on its unique merits and facts. The Court's overreliance on section 1 in cases involving statutes also creates uncertainty, since each application of the Oakes test is case unique.

67. Eldridge v. British Columbia [Attorney General], [1997] 3 S.C.R. 493.

68. M v. H., [1999] [unreported]

69. R. v. Jacob [1996], 31 O.R. [3d] 350.

70. Rodriguez v. British Columbia [Attorney General], [1993] 3 S.C.R. 519., R. v. Latimer, [1997] 1 S.C.R. 217.

71. R. v. Sharpe, [1999] B.C.C.A. 416.

72. Eugene Forsey, The Martland Lecture, University of Calgary, 1983.

73. R.I. Cheffins, "The Supreme Court of Canada: The Quiet Court in the Unquiet Country," Osgoode Hall Law Journal 4 [1966], 259-360.

74. Kenneth McNaught, "Political Trials and the Canadian Political Tradition," in M.L. Friedland, ed., Courts and Trials: A Multidisciplinary Approach [Toronto: University of Toronto Press, 1975],137.

75. Morgentaler v. The Queen [1975] 20 CCC [2d] 452, 461.

76. Wayne MacKay, "Fairness after the Charter: A Rose by any other Name," Queens Law Journal 10 [1985], 263.

77. J.R. Mallory, The Timlin Lecture. University of Saskatchewan,1984, 8.

78. Berend Hovius and Robert Martin, "The Canadian Charter of Rights and Freedoms in the Supreme Court of Canada," The Canadian Bar Review 61: 1 [March, 1983], 354.

79. The Queen v.Therens [1985] 1 S.C.R. 613.

80. Interview with Stephen Bindman, "Thank God for the charter," The Ottawa Citizen, 17 April 1997, A1,A2. See also Justice Lamer in Reference re British Columbia Motor Vehicle Act , [1985] 2 S.C.R. 486 [497]: "[T]he historic decision to entrench the Charter in our Constitution was taken not by the courts but by the elected representatives of the people of Canada. It was those representatives who extended the scope of constitutional adjudication and entrusted the courts with this new and onerous responsibility."

81. This argument is the central thesis of Samuel Bottomley, "Implied Constitutional Rights," M.A. Thesis, University of Calgary, 1997. All our examples are developed in Bottomley's analysis.

82. Joseph B. Board, "Judicial Activism in Sweden," Kenneth Holland, ed., Judicial Activism in a Comparative Perspective [New York: St . Martin's Press, 1991].

83. Alec Stone, The Birth of Judicial Politics in France [Oxford: Oxford University Press, 1992].

84. Martin Edelman, Courts, Politics and Culture in Israel [Virginia: University Press of Virginia, 1994].; Menachem Hofnung, "The Unintended Consequences of Unplanned Constitutional Reform: Constitutional Politics in Israel," American Journal of Comparative Law 44 [1996], 601.

85. The High Court's 1992 Free Speech decisions, Australian Capital Televison Pty Ltd v. The Commonwealth, 66 ALJR 695; Nationwide News v. Wills, 66 ALJR 658. For discussion, see Bottomley, Implied Constitutional Rights, M.A. Thesis, University of Calgary 110-128.

86. See, for example, the civil liberties decisions of the Supreme Court of Canada during the 1950s: Boucher v. The King, [1951] 1 S.C.R. 265; Saumur v. The City of Quebec, [1953] 2 S.C.R.299; Birks and Sons [Montreal] Ltd. v. Montreal, [1955] 1 S.C.R. 799; Chaput v. Romain, [1955] S.C.R. 834; Switzman; Roncarelli v. Duplessis, [1959] 1 S.C.R. 121.

87. See Bottomley, "Implied Constitutional Rights," ch. 7.

88. Gregory Hein, "Post-Materialists in Court: The Consequence of Value Change in the Power of Institutions," Paper prepared for the Annual Conference of the Canadian Political Science Association," Congress of the Social Sciences and Humanities, University of Sherbrooke and Bishop's University, June, 1999; 39.

89. This argument is developed more fully in chapter 3, "The Charter Two-Step" in Rainer Knopff and F.L. Morton, Charter Politics [Toronto: Nelson Canada, 1992].

90. Mark Silverstein, Judicious Choices: The New Politics of Supreme Court Confirmations [New York: W.W. Norton and Co., 1994], 34.

91. Charles Epp, "Do Bills of Rights Matter? The Canadian Charter of Rights and Freedoms," American Political Science Review 90.4 [Dec. 1996], 765-779.

92. Indeed, Epp provides persuasive evidence those trends that other commentators [including ourselves] had attributed to the Charter pre-date 1982 and reflect the prior development of a SSLM in Canada.

93. See Troy Riddell and F.L. Morton, "Competition for Constitutional Advantage: Reasonable Limits, Distinct Society and the Canada Clause," Canadian Journal of Political Science 31:3 [Sept. 1998], 467-493.

94. Robert Sheppard, "Rights advocates hail changes; Epp says nothing done for West," Globe and Mail, 13 Jan. 1981. 11.

95. Ian Brodie, "Interest Groups and the Supreme Court of Canada," Ph. D. Thesis, University of Calgary, Alberta, 1997, ch.2.

96. Minutes of the Special Joint Committee 1980-1981, v.9:58.

97. See Penney Kome, The Taking of Twenty-Eight: Women Challenge the Constitution [Toronto: The Women's Press, 1983].

98. M. Elizabeth Atcheson, Mary Eberts, and Beth Symes Women and Legal Action: Precedents, Resources and Strategies for the Future [Ottawa: Canadian Advisory Council on the Status of Women, 1984], 163.

99. Atcheson et al., Women and Legal Action , 163.

100. Brodie, Interest Groups and the Charter.

101. Allen and Morton found that feminists won 70 percent of the 47 appeal court rulings they studied. Hein reports a 64 percent success rate in 68 cases. Avril Allen and F.L. Morton, "Feminists in the Courts: Measuring Interest Group Success," Paper presented at the 1997 Annual Meeting of the Canadian Political Science Association, Memorial University, St. John's, Nfld. Hein, "Post-Materialists in Court," 29.

102. These are some of the groups that have received funding from the Court Challenges Program.

103. Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.

104. See Sherene Razack, Canadian Feminism and the Law: The Women's Legal Education and Action Fund and the Pursuit of Equality [Toronto: Second Story Press, 1991], 36-63; and M. Atcheson, Mary Eberts and Beth Symes Women and Legal Action: Precedents, Resources and Strategies for the Future [Ottawa: Canadian Advisory Council on the Status of Women, 1984], 172.

105. Alan C. Cairns, "The Charter : A Political Science Perspective," Patrick Monahan and Marie Finkelstein, eds., The Impact of the Charter on the Public Policy Process [Centre for Public Law and Public Policy, York University, 1993] 158-159.

106. LEAF and the CCLA opposed each other in the rape shield case of R. v. Seaboyer; R. v. Gayme [1991] 2 S.C.R. 577, and again in the Court's two main censorship cases, The Queen v. Keegstra, [1990] 3 S.C.R. 697 and R v. Butler, [1992] 1 S.C.R. 452. The position favoured by LEAF won in both instances. The conflict between civil libertarians and feminists is the focus of chapter 2 in A. Allan Borovoy, The New Anti-Liberals [Canadian Scholars Press, Inc., 1999].

107. See James Tully, "Diversity's Gambit Declined," in Curtis Cook, ed., Constitutional Predicament: Canada After the Referendum of 1992 [Montreal/Kingston: McGill-Queens University Press, 1994], 193-195.

108. Deborah Coyne, "How to Escape the Meech Lake Morass and Other Misadventures." Notes for remarks to the annual meeting of the Council of Canadians, Ottawa, 14 Oct. 1989, 3.

109. See Peter H. Russell, Constitutional Odyssey, 142-143.

110. The relationship between formal amendments and judge-made amendments is the subject of Christopher P. Manfredi, "Institutional Design and the Politics of Constitutional Modification: Understanding Amendment Failure in the United States and Canada," Law and Society Review 31:1 [1997], 111-136.

111. Arthur M. Schlesinger, Jr., The Imperial Presidency [Toronto: Popular Library, 1974].

112. Nathan Glazer, "Towards an Imperial Judiciary," The Public Interest 41[1975].

113. Allan Gotlieb, "The Republican Rules of the Game," The Globe and Mail, 1 Jan. 1995, A19.

114. Keith Archer et al., Parameters of Power: Canada's Political Institutions [Toronto: Nelson Canada, 1995]

115. Peter H. Russell, "The Effect of a Charter or Rights on the Policy-Making Role of Canadian Courts," Canadian Public Administration 25 [1982], 1-33.

116. Peter H. Russell, "The Supreme Court's Interpretation of the Constitution," in Paul W. Fox, Politics Canada, fifth ed. [McGraw-Hill Ryerson Limited, 1982], 608.

117. Thomas and Mary Edsall, Chain Reaction: The Impact of Race, Rights and Taxes on American Politics, [Norton, 1992]; reprinted in Ann G. Serow and Everett C. Ladd, eds., The Lanahan Readings in the American Polity [Baltimore: Lanahan Publishers, Inc., 1997], 464

118. Silverstein, Judicious Choices, 88.

119. Theodore J. Lowi and Benjamin Ginsberg, American Government: Freedom and Power, 3d. ed. [W.W. Norton and Co., 1994], 353.

120. See, for example, Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada, revised ed. [Toronto: Thompson Educational Publishing, 1994]; Allan C. Hutchinson, Waiting for Coraf: A Critique of Law and Rights [Toronto: University of Toronto Press, 1995]; and Joel Bakan, Just Words: Constitutional Rights and Civil Wrongs [Toronto: University of Toronto Press, 1997].

121. See notes 37-44, above.

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JURIST and the authors welcome your comments.

• This book is a major step forward in analysis of the Charter and its aftermath. The assessment of the Charter's deeper implications, many of which now look pernicious with respect to the exercise of democratic governmnet in Canada, is the most thoughtful I have seen. The book is certain to become a classic in the field because nowhere else has the whole set of problems created by the Charter's encouragement of effective collaboration between judges and interest groups been presented in such complete and compelling terms.

  Patrick James
  Iowa State University
  Iowa, USA