Not Quite Supreme: The Courts and Coordinate Constitutional Interpretation (review)

Reviewed by: Not Quite Supreme: The Courts and Coordinate Constitutional Interpretation Thomas M.J. Bateman Not Quite Supreme: The Courts and Coordinate Constitutional Interpretation by Dennis Baker. Montreal and Kingston: McGill-Queen’s University Press, 2010, 219 pp. While Canadians have expressed interest in an enlivened legislative branch in Canadian politics, they continue to display a consistent, almost fawning deference to the courts as authoritative interpreters of constitutional writ. Assisted by media, legal, and academic elites, they accept as orthodoxy not simply that courts have a primary and natural role in applying the text of the Constitution, but that courts have an exclusive authority to do so. Dennis Baker’s thoughtful and tightly argued book offers a way to understand this paradox. Part of the answer, Baker argues, rests in our understanding of the nature of the Canadian Constitution. Most people coming of age in the Trudeau era identify the Constitution with the Charter. The Charter is about rights, and rights are the claims that persons make against state power they consider illegitimate. Courts are considered the obvious forums for the vindication of these rights. After all, the state is often a party to legal disputes, and the courts are an independent branch of government structured to challenge the overreaching of the others. And indeed the other branches cannot be counted on to resist one another because in the Canadian parliamentary scheme, the executive and legislature are fused. Executive domination is the watchword. The courts are our only hope for the vindication of rights. What follows from the fusion of powers is judicial supremacy. Baker finds judicial supremacy both wrong and dangerous. His book is a trenchant argument for a coordinate Canadian constitutionalism according to which all branches of government are equal in constitutional status and possess “partial agency” (that is, a share in the power principally allocated to other branches) to challenge the decisions of other branches (pp. 4–5). The paradigmatic example is found in sections 53 and 54 of the Constitution Act, 1867, concerning money bills. The legislature cannot introduce legislation concerning the raising or spending of money; only the executive can do this. But each branch has determining power over the budget. The executive may often dominate the House of Commons and Senate, but it still must secure their approval and on occasion is denied it. Canada does have a true separation of powers, Baker insists. The problem is a lazy behaviouralism that formalizes as constitutional reality observations about informal practice. On the contrary, Baker argues (here relying upon Harvey Mansfield’s work on political executives), it is the interaction of informal and formal power that is the stuff of modern constitutionalism (Chapter 4). Institutions and their forms matter; they are what informal practice pushes against but never occludes. If Canada has a true separation of powers, then judicial supremacy is illegitimate. In its place Baker inserts coordinate constitutional interpretation. There ought to be no interpretive monopolies in Canada. Baker cites R. v. O’Connor (1995) in which a 5–4 majority of the Supreme Court ruled that a priest accused of sexual assault had a Charter right to access the complainant’s confidential counselling records so he could make a full and fair defence to the charge. Parliament then passed a new law based on the dissenting judges’ view, giving the privacy rights of victims a wider berth. When the Court eventually heard a constitutional challenge to the new law in R. v. Mills (1999), it had to decide essentially between its own 1995 precedent and the view of the dissenters in 1995, now backed by the will of Parliament. It chose the latter, illustrating for Baker the operation of coordinate constitutional interpretation in a Canadian separation of powers framework. The O’Connor-Mills sequence is heresy for the judicial supremacists who populate the bench and law schools; but for Baker it is the essence of constitutional government. Coordinate interpretation also means that when exercising judicial review, a court shall disregard the effect of the law in the case at hand only. Judicial supremacists hold that if a court invalidates a law, it shall apply to no one else, unless and until an [End Page...

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