Sei sulla pagina 1di 12

Canadian Constraints on Judicialization from without

Author(s): Peter H. Russell


Source: International Political Science Review / Revue internationale de science politique,
Vol. 15, No. 2, The Judicialization of Politics. La judicialisation de la politique (Apr., 1994),
pp. 165-175
Published by: Sage Publications, Ltd.
Stable URL: http://www.jstor.org/stable/1601564
Accessed: 15-07-2016 12:50 UTC

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
http://about.jstor.org/terms

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted
digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about
JSTOR, please contact support@jstor.org.

Sage Publications, Ltd. is collaborating with JSTOR to digitize, preserve and extend access to
International Political Science Review / Revue internationale de science politique

This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
International Political Science Review (1994), Vol. 15, No. 2, 165-175

Canadian Constraints on Judicialization from


Without

PETER H. RUSSELL

ABSTRACT. Canada's adoption of a constitutional Charter of Rights and


Freedoms has led to a limited judicialization of politics which has been
felt mostly in the field of criminal justice. But judicialization in major
fields of social and economic policy has been limited by the Charter's
terms and by judicial self-restraint. The Charter's principal impact on the
country's political life is not a transfer of power to the judiciary but a
juridicalization of political discourse. Divisive moral and constitutional
issues have been permeated with "rights talk." This makes consensual
resolution of these issues more difficult.

Introduction

This paper focuses on Canada's recent experience with what Torbjorn Vallinder
(1992) terms "judicialization from without," even though "judicialization from
within" in Canada as elsewhere may be the more pervasive, though less spectacu-
lar, aspect of expanded judicial power. As an example ofjudicialization from within,
Vallinder refers to the judicialization of decision-making within Britain's adminis-
trative tribunals. [See, also, pp. 91-99 this issue-Ed.] There has certainly been
plenty of that in Canada. The insistence on judicial due process in ever widening
realms of public administration is part and parcel of the expanding catalogue of
justiciable rights that has been a hallmark of modernizing societies as they moved
from Gemeinschaft to Gesellschaft. (Tonnies, 1965). The adoption of national and inter-
national bills of rights, the primary foundation of judicialization from without,
reflects and reinforces this tendency.

Impact of the Charter of Rights


Since 1982, when Canada adopted a constitutional bill of rights called the Canadian
Charter of Rights and Freedoms, the nation has experienced a heavy new dose of
judicialization from without. Charter-based judicial review of legislation and
0192-5121 94/02 165-11 ? 1994 International Political Science Association

This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
166 Canadian Constraints on Judicialization from Without

executive acts has undoubtedly expanded the Canadian judiciary's sphere of activ-
ity, and in that sense has increased the judiciary's power. However, this expansion
of judicial power has not necessarily been "at the expense" (to use Vallinder's
phrase) of the legislative or executive branches. The main impact of a constitu-
tional bill of rights on the political system, if Canada's experience is a guide, may
be less a transfer of power to the judiciary than a general transformation of the
nature of political life. That transformation might be better summed up by the
phrase "juridicalization," as used in Professor Shapiro's paper (1992), than by the
term "judicialization." [See pp. 101-112, this issue-Ed.]
When Canadians were debating whether to adopt a comprehensive constitutional
bill of rights, a few academics and politicians drew attention to such a measure's
tendency to expand judicial power. Indeed, at the time the Charter was adopted
the present writer stated that its main effect on the governmental process in
Canada would be "a tendency to judicialize politics and politicize the judiciary"
(Russell, 1983: 50-51). It may seem ironic that ten years after the Canadian
Charter came into force we find the same person presenting a paper on the limits
to judicialization in Canada. The purpose in doing so is not to recant the earlier
prediction but to illuminate some of the key factors that shape and limit the conse-
quences of the judicialization process.

Constraints on Use of the Legislative Override


A constraint on judicialization which has not been very effective is one built right
into the Canadian Charter-Section 33, the legislative override clause. Canada's
constitutional bill of rights is one of the few in the world that expressly permits
legislatures (federal or provincial) to pass legislation notwithstanding certain
specific rights.' The rights against which the override can be used include virtually
all of the Charter's universal rights-political freedoms, due process rights, and
protection against discrimination. Its use requires only a majority vote of the legis-
lature. An override dies after five years but can be renewed.
The legislative override was inserted in the Charter at the insistence of politicians,
mainly provincial premiers, who wanted an accountable, democratic check on judicial
review (Weiler, 1984). To those who believe fundamental, constitutional rights are
being taken seriously only when the judiciary can uphold them against the majori-
tarian decisions of the political branches, the legislative override contradicts the very
purpose of the Charter (Whyte, 1990). For those who see judicial review as another
form of fallible policy-making, the override is a prudent fail-safe device (Russell,
1991). In practice, the legislative override is hardly ever used. The fact that outside
of Quebec the legislative override, politically speaking, is almost unusable tells us
much about how constitutionalizing rights can affect the nature of politics.
The override has been used only once outside of Quebec-that was in the
Charter's early years, when Saskatchewan's legislature attached the override to
legislation ordering striking civil servants back to work. As it turned out there is
no need to immunize that kind of legislation from judicial review because in
subsequent cases the Supreme Court of Canada ruled that the Charter's right to
"freedom of association" does not embrace the right to strike (Russell, Knopff
and Morton, 1989: 5). Quebec, however, used the legislative override in a massive
way, applying it to all past legislation and all new legislation. It did this for
symbolic reasons, as a way of protesting the fact that the Charter and the other
1982 constitutional changes were imposed on Quebec without the consent of its

This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
PETER H. RUSSELL 167

National Assembly. But in 1988, after a Liberal government led by Robert


Bourassa had replaced a separatist government, and after the override's five-year
period had run out, Quebec's National Assembly used the override clause to
counter a Supreme Court decision. The Court had ruled that a section of Bill 101,
Quebec's Charter of the French language, requiring French-only advertising
signs, violated the Charter's guarantee of "freedom of expression" (Quebec v. Ford
1988, 2 SCR 712). The Court's decision provoked the largest nationalist rallies in
Quebec since the 1980 referendum. "Ne toucher pas la loi 101" was their slogan.
Responding to this pressure the Bourassa government, which in its election
campaign had promised to restore bilingual signs, decided now to use the override
to restore French-only commercial signs outdoors but to allow multilingual signs
indoors.
All this occurred during a major round of constitutional politics based on the
Meech Lake Accord, a set of constitutional proposals primarily designed to win
Quebec's support for the constitutional changes imposed on the province in 1982.
By December 1988, when the Supreme Court rendered its decision, ratification of
the Meech Lake Accord was almost complete-the federal Parliament, Quebec's
National Assembly, and the legislatures of all but two of the other provinces had
approved the Accord. But so great was English Canada's furore over Quebec's use
of the override to protect its "visage linguistique" that from this point on "there
was virtually no chance that the Meech Lake Accord would be ratified" (Monahan,
1991; 164). The Meech Lake Accord indeed died, and with it, perhaps, the chance
of maintaining the unity of the Canadian federation. A constitutional bill of rights
designed to unify the country may turn out to be the final instrument of the
country's break-up.
That this could happen shows, at least in the Canadian case, that the impact of
constitutionalizing rights on civic consciousness can be far more significant than
any shifts it brings about in the balance of power between the judiciary and the
other branches of government. For opinion-leaders in English Canada the Charter
had become an icon, its rights fundamental and absolute. The episode demon-
strated the extent to which the rhetoric of constitutional rights invests political
discourse with a deep sense of moral rectitude. English Canadians had never cared
very much for the French-only sign policy which had been in place since 1977, but
now that this policy could be impugned as a violation of a fundamental constitu-
tional right, opposition to it could be mounted on a high moral plane. No longer
was there any need to consider French Quebecers' beliefs about what was neces-
sary to ensure the survival of a French-speaking community on a continent
dominated by the English language. The individual's freedom to advertise in the
language of choice was so fundamental that it should not make room for any other
value or interest.
After the Quebec sign-law incident, the legislative override became, from a
political standpoint, virtually unusable outside of Quebec. Even before the signs
case, the popularity of the concept of a Charter of Rights made legislators reluc-
tant to use the override. Now the override was tainted in English Canada by its
use to secure the language policy of Quebec's French majority. Normally politi-
cians are not reluctant to use constitutional powers that are important to them.
The key to understanding the willingness of Canadian governments-other than
Quebec's-to forsake use of the override power is that the Charter, as it was
being interpreted and applied by the courts, did not threaten their vital policy
interests.

This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
168 Canadian Constraints on Judicialization from Without

The Limited Policy Scope of the Charter of Rights

Here we encounter the most important constraint on the Canadian Charter's


tendency to promote "judicialization from without": the limited policy scope of
Canada's Charter of Rights and Freedoms. The policy area most frequently affected
by Charter litigation is criminal justice. At least 80 percent of court cases involving
Charter-based judicial review fall in that area. Criminal justice is undoubtedly an
important field of state policy, but it is a field in which the judiciary, throughout the
common law world, has always been an active policy-maker. Also, criminal justice is
not normally a high priority policy area for governments in Canada. Outside of crimi-
nal justice only one programme of major importance to a government has been
mauled by Charter-based judicial review, and that is Quebec's language policy. At
the federal level, the most important Charter hit is the Supreme Court's ruling in
the Singh case requiring judicial type hearings (that is, judicialization from without
forcing judicialization within) in settling claims for refugee status (Singh v. Minister
of Immigration 1985, 1 SCR 177). Even here, the government quite independently of
the Singh case was already planning to introduce such a change in refugee proceed-
ings. None of the key economic and social policy interests of governments-monetary
and fiscal policy, international trade, resource development, social welfare, educa-
tion, labour relations, environmental protection-have been significantly encroached
upon by judicial enforcement of the Charter.
The limitations on the Charter's policy impact stem both from the Charter itself
and from its interpretation by the judiciary. Although the list of rights and freedoms
included in the Canadian Charter is relatively comprehensive, one notable omission
is property rights. This omission is no accidental oversight. The omission of property
rights was insisted upon by Canada's social democratic party, the NDP, as a condi-
tion for its support of the Charter.2 The absence of property rights reduces the
Charter's impact, especially its due process of law guarantees, on social, economic,
and environmental regulation. Of more fundamental importance is the fact that
the Charter applies only to governments and legislatures. Charter rights and
Charter freedoms can be claimed only against actions of governments or legisla-
tures. But the main barrier to full enjoyment or exercise of some rights, particu-
larly equality rights, is not government action but government inaction in
responding to problems emanating from the private sector and the very structure
of society. This, I believe, is the main reason the Charter has been a disappoint-
ment to those who expected it to be a major vehicle for social reform.
The Charter's limited scope has not deterred lawyers representing social action
groups from trying to use the Charter as a vehicle for social change. This has
aroused the ire of critics on the right who fear that a "court party" of Charterphile
lawyers will use Charter advocacy as an undemocratic means of advancing the objec-
tives of special interest groups (Knopff and Morton, 1992). Meanwhile critics on
the left fear that Charter litigation will fritter away the resources available to
progressive social forces (Mandel, 1989). There is not much empirical evidence to
support either of these concerns (Sigurdson, 1992). The right-wing critics can point
to few instances where judicial review under the Charter has forced elected politi-
cians to initiate policies or spend money against their wishes. Nor is there any
evidence that feminists, anti-racists, the labour movement, environmentalists, and
other groups working for social reform in Canada have decided to forsake direct
political action while some of their lawyer-members flail about in the courts with
the Charter.

This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
PETER H. RUSSELL 169

The Charter's Impact on Political Culture

Although the Charter has not judicialized Canadian politics in the sense of bring-
ing about a major transfer of policy-making power to the courts, it could have a
long-term impact on policy by shaping how Canadians think about political values.
I have already commented on the Charter's highly divisive influence on attitudes
to constitutional politics in Canada.
The Charter could also have a potent effect on policies concerned with the distri-
bution of wealth and power in the Canadian variant of welfare-capitalism if its
concern about restricting government activities came to be identified in the public
mind with social progress. In other words, if most Canadians in English Canada
come to believe that their Charter rights are more fundamental than any other
rights or interests they might have, then the direction of policy and the entire polit-
ical spectrum might well shift to the right. Some would argue that the emergence
of a new right-wing Reform Party in Canada, with policies resembling those of the
American Republican Party, is evidence that this shift is occurring.

Judicial Restraint in Charter Interpretation


The Charter's built-in limitations have been augmented by a cautious performance
on the part of its most authoritative interpreter, the Supreme Court of Canada.
After a rollicking barrage of initial decisions in which the Court, citing John
Marshall, expressed its determination to take Charter rights seriously, and upheld
three-quarters of the Charter claims brought before it, it settled down to a relatively
moderate approach (Russell, 1988). In its first 100 Charter decisions, the percent-
age of successful Charter claims-35 percent-was just 1 percent below the success
rate of Bill of Rights claims in the United States Supreme Court during the same
period (Morton, Russell and Withey, 1992). The Canadian Supreme Court's moder-
ate performance has not been well received in the academy-it is far too restrained
for proponents of judicial activism and not nearly deferential enough for advocates
of judicial self-restraint. But it has probably kept the Court in line with the
mainstream of political opinion in the country. That, it has been argued, may be
the underlying, if somewhat instinctive, rationale of the Court's Charter perfor-
mance (Pond, 1992).
Whatever the motive, there can be no doubt that the Supreme Court's jurispru-
dence has significantly restricted the scope of the Charter's impact and thus the
ambit ofjudicialization. In a 1986 case, Dolphin Delivery 1986, 2 SCR 573), the Court
narrowed the realm of state action to which the Charter applies by removing from
that realm judicial decisions applying common law (in this case a common law rule
against secondary picketing) in actions involving private parties. In a trio of 1987
cases, the Court denied that the right to strike and other collective bargaining
rights could be included within the Charter's guarantee of "freedom of association"
(Alberta Labour Reference 1987, 1 SCR 313). Having rebuffed organized labour's efforts
to use the Charter to expand its power, the Supreme Court was at pains to rebuff
parallel efforts of the business class. In Edwards Books, the Court upheld Ontario
Sunday-closing legislation designed to give retail workers a common day of rest.
Chief Justice Dickson justified this decision by arguing that in interpreting the
Charter "the courts must be cautious to ensure that it does not become an instru-
ment of better situated individuals to roll back legislation which has as its object
the improvement of the condition of less advantaged persons" (1986, 2 SCR 713,

This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
170 Canadian Constraints on Judicialization fom Without

779). In Irwin Toy, Dickson made it clear that the right of liberty guaranteed in
Section 7 was not to be used to protect corporate commercial rights (1989, 1 SCR
927).
The Supreme Court's treatment of the Charter's Section 15, which set out equal-
ity rights, has shown a similar limiting tendency. That Section, as written, was
potentially wide open. It inscribes a general right to equality "before and under the
law" as well as "equal protection and equal benefit of the law without discrimina-
tion" and then gives as particular examples of unconstitutional discrimination,
"discrimination based on race, national or ethnic origin, colour, religion, sex, age
or mental or physical disability." In interpreting this Section, the Supreme Court
has in effect reduced Section 15's coverage to laws that harm or prejudice groups
covered by or that are analogous to the Section's enumerated categories (Andrews
v. Law Society ofB.C. 1989, 1 SCR 143). This immunizes a great many discriminatory
laws-for instance most areas of business regulation-from judicial review. And
even to laws that discriminate on the explicitly prohibited grounds, the Court
applies no doctrine of "strict scrutiny." Under the Charter's "reasonable limits"
clause, the Court can defer to legislative judgment on the balance to strike between
constitutional equality rights and other important societal interests. It did just that,
for instance, in dismissing a challenge by university professors to policies requiring
mandatory retirement at age 65 (McKinney v. Univ. of Guelph 1990, 3 SCR 229). Most
recently, the Supreme Court has ruled that where a social welfare law is found to
be unconstitutional because of its under-inclusiveness the courts must not extend
the law's coverage if doing so would have major budgetary consequences.3

The Charter's Impact on Criminal Justice Policy


The targets of most of the Supreme Court's Charter activism have been criminal
law and police practices. In a number of areas of criminal justice the Court's treat-
ment of due process rights has been more liberal even than the Warren court in
the United States. Examples are extending the right to counsel to non-custodial
situations and excluding evidence based on a non-consensual blood sample as a
violation of a right to privacy (Harvie and Foster, 1990).
But even in the criminal justice field where the courts have always been relatively
active, constraints on judicialization are operative. Enunciating liberal rules of
criminal procedure is one thing-securing police compliance with these rules is
another matter. Until the appropriate kind of empirical reseaarch is carried out,
we will not know the extent to which the Supreme Court's Charter jurisprudence
is actually modifying police behaviour, particularly in the treatment of suspects.
Even at the level of constitutional doctrine, the Court has not pushed its activism
so far in the criminal justice field as to overturn highly popular law enforcement
programs. For example, it invoked the reasonable limits clause to uphold gun
control provisions of the Criminal Code (R. v. Schwartz 1988, 2 SCR 443), and random
roadside tests aimed at apprehending drunk drivers (R. v. Hufsky 1988, 1 SCR 621
and R. v. Thomsen 1988, 1 SCR 640).
So far the Court's Charter activism has not undermined criminal justice policies
to which elected governments are strongly attached. A major exception would seem
to be the Court's decision inAskov which, through its interpretation of the Charter's
speedy trial rule, put at risk thousands of criminal charges in Ontario (R. v. Askov
1990, 2 SCR 1199). The principal policy impact of this decision was the strengthen-
ing of the position of Ontario's Attorney General in securing more resources for

This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
PETER H. RUSSELL 171

the province's justice system and the implementation of management changes in a


very badly administered judicial region. Besides, when the media made a hullabaloo
about dangerous criminals going free because they were not brought to trial within
eight months, the Supreme Court justice who authored the opinion was moved to
comment (off the bench) that he had not meant his judgment to be interpreted so
rigidly. In a subsequent decision the Court clarified its Askov ruling to make it clear
that it did not support a rigid eight-month rule.4
What we see then in the Canadian experience with a new constitutional bill of
rights is a judiciary constraining the growth of its power. Most of the members of
the country's highest court are conscious of the political reasons for exercising this
constraint. This consciousness is evident in the following passage from an interview
with the current Chief Justice, Antonio Lamer, published in a leading national
newspaper on the tenth anniversary of the Charter of Rights:
In 1982 when the Charter came in, governments were watching the courts to
see what they would do. I think now they realize we haven't gone berserk with
the Charter and we aren't striking down laws right and left. They know how far
we'll go and how far we're not going to go because we've said so.. .(Lamer, 1992).

Lamer reflects the desire of most members of the Court not to push their power
of judicial review so far as to antagonize leaders in other branches of government
or the mainstream of public opinion.

Judicial Processing of Moral Issues


Of course sometimes it is impossible to avoid controversial outcomes. Some Charter
cases raise "moral issues" around which there are sharply opposed political inter-
est groups and no strong or clear public consensus. Abortion, Sunday-closing, anti-
hate propaganda, prostitution, and pornography are examples. These are issues
most politicians are happy to off-load onto the courts. A legislative override could
really be an embarrassment here if it encouraged those who lost in the courts to
bring the issue back to the legislature.
The clearest examples of this pattern of judicial interaction with the legislative
process are the Supreme Court's decisions on abortion and sexual assault. In
Morgentaler (1988, 1 SCR 30), the Court struck down restrictions on abortion in
Canada's national criminal code, and in Seaboyer (1991, 2 SCR 577) it struck down
"rape-shield" provisions of the criminal code, which in sexual assault cases had
prevented the use of evidence of a complainant's sexual history. Morgentaler aroused
the right-to-life movement, while Seaboyer aroused feminists-evidence in itself of
the Court's weaving down the centre lane in areas of social controversy. In both
cases, the aroused and losing group went immediately to the parliamentary lobby
to press for legislative redress. In neither case was there any inclination on the part
of the politicians to use the override, but in both cases the government agreed to
bring in new legislation designed to accommodate the Supreme Court's jurispru-
dence.5
In cases dealing with anti-hate propaganda (R. v. Keegstra 1990, 3 SCR 697), restric-
tions on Sunday-shopping (Edwards Books v. R. 1986, 2 SCR 713), prostitution (R. v.
Skinner 1990, 1 SCR 1235), and pornography,6 the Supreme Court invoked the
Charter's reasonable limits clause to uphold legislation encroaching on Charter
freedoms. Here, as with cases where it overturned legislation, the Court's decisions
did not remove the issues from politics. Judicialization in these cases is best

This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
172 Canadian Constraints on Judicialization from Without

analyzed not as transferring decision-making authority from one branch of govern-


ment to another but as judicial processing of social controversy. We shoud trace the
political consequences of this judicial processing along two lines: its effect on the
political resources of the contending sides and its tendency to inject a rights
discourse into the political debate.
Though a court decision upholding legislation against a constitutional challenge
may increase the legislation's legitimacy, and thereby enhance the resources of
those interested in maintaining the legislative policy, it will not make legislation
invulnerable to a determined political attack. A good example is the provincial
Sunday-closing legislation upheld by the Supreme Court. Sunday-closing has contin-
ued to be under seige by commercial interests and the strength of consumerism.
These political and societal forces, in one way or another, will bring about a differ-
ent outcome from that sanctified by the Supreme Court. There are clear examples
of judicial decisions injecting a rights discourse into disputes. I have already
commented on that consequence of the Supreme Court's decision in the Quebec
signs case. The passionate sense of righteousness which characterizes both sides of
the abortion issue in Canada (and in the United States) has been intensified by
judicial processing. To the extent that judicialization has this effect it may make
social consensus on such issues more difficult to obtain.

The Absence of a Legitimacy Crisis


As Canada has settled into life under a constitutional bill of rights, judicial review
has not provoked a legitimacy crisis. There is no popular hue and cry-even in
Quebec where Charter decisions appear to be most obviously counter-majoritar-
ian-against appointed judges making decisions on important questions of public
policy. The constraints flowing from the structure of the Canadian Charter of
Rights and Freedoms plus the self-imposed constraints of the Canadian judiciary,
especially the country's highest court, partially account for the absence of a legiti-
macy crisis. Even more fundamental is a general disillusionment with representa-
tive democracy. The Citizens' Forum which in 1990-91 heard from over 400 000
Canadians on their concerns about the country, reported that the most common
concern of forum participants was that they "have lost faith in both the political
process and political leadership" (Canada, 1991). In Canada, as in other liberal
democracies, it is the elected politicians, not the judges, who are experiencing a
legitimacy crisis.
Even though judges are in better odour in Canada than politicians, there is,
nonetheless, a good deal of resistance to giving the judiciary a major role in apply-
ing some new constitutional provisions that are now being considered in Canada.
Among the constitutional proposals under discussion in the current round of consti-
tutional politics are a stronger guarantee of free trade within the Canadian feder-
ation and a social charter establishing social policy and environmental standards to
be maintained by all governments in the federation (Russell, 1992). The support-
ers of both proposals are of the opinion that "the courts are not the appropriate
forum in which to settle disputes on such complex issues of law and public policy"
(Canada, 1992: 87). Non-judicial monitoring agencies are proposed for these consti-
tutional policy objectives.
It is, of course, politicians in the elected branches of government who favour these
constraints on the growth of judicial power in Canada. Nonetheless the reluctance
of political leaders to deal the judiciary into a vast expansion of discretionary

This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
PETER H. RUSSELL 173

decision-making in the field of socio-economic policy has not stirred up much public
controversy. There are some on the left who say that they would like to see the
courts enforcing positive entitlements to such things as "comprehensive health
care," "high quality education," "adequate social service and benefits," "the
integrity of the environment," "full employment," and a "reasonable standard of
living."7 But it is most doubtful if a majority of Canadians-left, right, or centre-
could come to believe in such judicial fairy tales. In Canada, judicialization of
politics from without is not likely to exceed its modest expansion under the Charter
of Rights.

Conclusions

This brief overview of Canada's ten-year experience with a new constitutional bill
of rights suggests three general conclusions about the judicialization of politics
stemming from such a constitutional change.
First, the main impact of a bill of rights is not so much a transfer of power to
the judiciary as a more general judicialization of politics, in which the language and
norms of constitutional rights, to use Alec Stone's phrase, "permeate and are
absorbed by, political discourse" (Stone, 1992). In the Canadian case, this process
of judicialization would seem to be the principal outcome of those situations in
which the Charter of Rights has dealt the courts into controversial public issues.
Court decisions on language rights and abortion, for instance, rather than remov-
ing these issues from the political realm, returned them to political contention
recast in less compromising and more strident terms-making consensual resolu-
tion of the issues more difficult than before.
Second, a constitutional bill of rights codifying what government must abstain
from doing to its citizens has a limited impact on public policy. The policy field that
has felt the greatest impact of Canada's Charter is criminal justice. With the excep-
tion of Quebec's language policy, social and economic policies of central importance
to elected governments have not been significantly affected by the Charter.
Judicialization resulting from the Charter has not led to a power struggle between
the judiciary and the political branches. On the contrary, politicians are happy to
off-load on to the courts responsibility for making decisions on divisive moral issues
such as abortion, pornography, and Sunday-closing.
Third, the judiciary itself can limit the scope ofjudicialization by decision-making
strategies that confine the impact of a constitutional charter to policy fields where
judges believe they have competence and legitimacy. This has certainly happened
in the Canadian case. Although the Supreme Court of Canada has set a fairly
activist standard in applying the Charter to criminal law and procedure, the Court
has minimized the Charter's impact on issues involving the interests of business
and labour, and is very cautious about making decisions that impose fiscal burdens
on government. Ironically, Canadian judges may underestimate their own legiti-
macy and overestimate the legitimacy of elected politicians. In an age that has
become so cynical about representative democracy, the same may be true of judges
in other countries.
Finally, the inclination of Canada's constitution makers to adopt a "Social
Charter," establishing positive constitutional rights to social benefits, raises an
important question for the future. The demand for the constitutionalization of such
positive entitlements is a product of the juridicalization of politics fostered by the
Charter of Rights. Still, if the Social Charter is detached from judicial review as its

This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
174 Canadian Constraints on Judicialization from Without

sponsors propose, it will be interesting to see if it can be as potent an instrument


for juridicalization as the Charter of Rights has been. If Canada's Social Charter
does nothing else, it will at least test whether judicialization is a necessary dimen-
sion of juridicalization.

Notes

1. The other constitution with a clause most resembling Canada's is that of Jamaica.
However, it requires a two-thirds majority of both Houses of Jamaica's Parliament. For
further comparisons see Letourneau, 1991.
2. In the round of constitutional politics that followed defeat of the Meech Lake Accord, the
Conservative federal government proposed inserting property rights in the Charter but
found insufficient support to continue with this proposal.
3. The judgment was given in The Queen v. Schachter on July 9, 1992. The case has not yet
been reported in the Supreme Court Reports.
4. The judgment was given in Deepak Kumar Sharma v. The Queen on March 26, 1992. The
decision has not yet been reported in the Supreme Court Reports.
5. The new criminal code provisions on abortion were blocked by the Senate. The new "rape-
shield" law, at the time of writing, is still at the drafting stage.
6. The judgment was given in Butler v. The Queen on February 27, 1992. The decision is not
yet reported in the Supreme Court Reports.
7. These are some of the social policy standards to be included in the social covenant and
economic declaration proposed in the Report on a Renewed Canada (Canada, 1992). For an
attack on the social charter proposal for its failure to empower judges to help the disad-
vantaged, see Jackman, 1992.

References

Canada. Supreme Court Reports (SCR).


Canada (1991). Citizens' Forum on Canada's Future. Condensed version, Globe & Mail, p. A9. 2
July 1991.
Canada (1992). Report of the Special Joint Committee of the Senate and the House of Commons on a
Renewed Canada.
Harvie, R. and H. Foster (1990). "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: 729-788.
Jackman, M. (1992). "When a Social Charter Isn't." Canadian Forum, (April) 8.
Knopff, R. and F.L. Morton (1992). Charter Politics. Toronto: Nelson.
Lamer, A. (1992). "Interview with Chief Justice of Canada on Tenth Anniversary of the
Charter of Rights." Globe & Mail Toronto, 17 April.
Letourneau, S. (1991). "The Legislative Override Power: Section 33 of the Canadian Charter
of Rights and Freedoms." M. Litt. thesis, University of Oxford.
Mandel, M. (1989). The Charter and the Legalization of Politics in Canada. Toronto: Wall &
Thompson.
Monahan, P. (1991). Meech Lake: The Inside Story. Toronto: University of Toronto Press.
Morton, F.L., P.H. Russell and MJ. Withey (1992). "The Supreme Court of Canada's First
One Hundred Charter of Rights Decisions." Osgoode Hall Law Journal 30: 1-56.
Pond, D. (1992). "The Supreme Court of Canada and the Politics of Public Law." Ph.D.
dissertation, University of Toronto.
Russell, P.H. (1983). "Political Purposes of the Canadian Charter of Rights and Freedoms."
Canadian Bar Review 61: 30.
Russell, P.H. (1988). "Canada's Charter: A Political Report." Public Law 385-401.
Russell, P.H. (1991). "Standing Up for Notwithstanding." Alberta Law Review, 293-309.
Russell, P.H. (1992). Constitutional Odyssey: Can Canadians Become A Sovereign People? Toronto:

This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
PETER H. RUSSELL 175

University of Toronto Press.


Russell, P.H., R. Knopff and F.L. Morton (1989). Federalism and The Charter: Leading
Constitutional Decisions. Ottawa: Carleton University Press.
Shapiro, M. (1992). "Judicialization in the United States." Paper presented to Interim
Meeting of the International Political Science Association Research Committee on
Comparative Judicial Studies, University of Bologna, Forli, 14-17 June.
Sigurdson, R. (1992). "Left and Right-wing Charterphobia in Canada." Paper presented to
Annual Meeting of the Canadian Political Science Association, University of Prince Edward
Island, Charlottetown, 31 May.
Stone, A. (1992). "The Politics of Complex Coordinate Construction: Judicialization and
Constitutional Development in France and Germany." Paper presented to Interim
Meeting of the International Political Science Association Research Committee on
Comparative Judicial Studies, University of Bologna, Forli, 14-17 June.
Tonnies, F. (1965). Community and Association, (C. Loomis, ed.). New York: Barnes and Noble.
Vallinder, T. (1992). "The Judicialization of Politics: Meaning, Forms, Background,
Prospects." Festskrift tilldgnad Hakan Stromberg pd 75-drsdagen den 18februari 1992. 267-278.
Lund: Juristforlaget.
Weiler, P.C. (1984). "Rights andJudges in a Democracy: A New Canadian Version." University
of Michigan Journal of Law Reform, 18: 51-92.
Whyte, J.D. (1990). "On Not Standing for Notwithstanding." Alberta Law Review, 347-357.

Biographical Note

PETER H. RUSSELL is Professor of Political Science at the University of Toronto,


where he has taught since 1958. He has served as President of the Canadian
Political Science Association and the Canadian Law & Society Association. He has
written extensively on judicial and constitutional politics. His most recent books are
The Judiciary in Canada: The Third Branch of Government and Constitutional Odyssey: Can
Canadians Become A Sovereign People? ADDRESS: University of Toronto, Department of
Political Science, Toronto, Canada M5S 1A1.

This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms