Governing with the Charter: Legislative and Judicial Activism and Framer's Intent (review)

Reviewed by: Governing with the Charter: Legislative and Judicial Activism and Framer's Intent John Saywell Governing with the Charter: Legislative and Judicial Activism and Framer's Intent. James B. Kelly. Vancouver: UBC Press, 2005. Pp. 320, $85 cloth It is difficult to do justice to James Kelly's study without reviewing the historiography of Charter interpretation, for the book is in many ways an analysis and critique of the interpreters, from the debate over the intentions of the framers to 'the legalisation of politics,' as an activist Supreme Court allegedly threatens the foundations of constitutional supremacy. Or, as Ted Byfield of the Western Standard put it, we are now governed by a religion prescribed by the 'nine high cardinals of the Sacred College.' Byfield was giving only a catchy touch to the work of his ideological friends down the road, for much of the debate over judicial review of the [End Page 707] Charter has been framed by the right-wing think tank of the University of Calgary's political science department, the leading members of which in the Charter field are Ted 'Senator-designate' Morton and Rainer Knopf, aided and abetted by Christopher Manfredi of McGill, with Tom Flanagan in the policy area. Their central argument is that the Supreme Court has seen the Charter as giving them a blank judgment book in which they can scrawl whatever they want, paying little or no attention to the framers' intent and, with great enthusiasm, reversing the traditional institutional roles, with the court determining what the legislature can do and the legislature dutifully implementing the court's decisions. Moreover, as a result, the increase in judicial power has created the 'Court Party,' a group of well-organized, largely post-materialist litigants (funded in large part by the federal government), among which the feminists are the most determined and successful. Having failed to achieve their ends in the democratic process, they have triumphed in their appeals to a sympathetic and activist court. Kelly's study is a welcome and important addition to the Charter literature for two general reasons. First he rejects a central premise of the right-wing critics – even though Manfredi sat on his doctoral supervisory committee at McGill – that the court is activist well beyond the framers' intent, and second that their jurisprudence undermines federalism, constitutional supremacy, and democracy. Kelly does not deny that s. 7 ('principles of fundamental justice') was not intended to give the court the wide discretion over substantive justice it claimed in early decisions (although it did give broad powers of adjudication), but contends as do most scholars that s. 1 on government limits, s. 24 on remedies, and s. 15 on equality rights were intended to give the court enormous scope and power in subjecting government actions to judicial scrutiny. The Charter deliberately and clearly mandated an activist court that was designed to monitor the legislative choices of a majority. As Madame Justice Rosalie Abella observed before her elevation, 'What pumps oxygen no less forcefully through vibrant democratic veins is the protection of rights, through courts, notwithstanding the wishes of the majority.' Kelly reiterates the fact that over half of the Charter nullifications have concerned police action and that many legislative nullifications were of pre-Charter legislation. This leads him to the conclusion that there is a dialogue – not between the court and the legislature as Peter Hogg had argued – but a more complex inter-institutional dialogue between the Charter, the court, and the Cabinet and the Department of Justice. It is a dialogue that occurs when legislation is scrutinized before it is passed to make certain it will not offend the Charter and pass judicial scrutiny. Moreover, in finding [End Page 708] more statutes constitutional than unconstitutional, Kelly argues, the reasoning reveals a court 'conscious of its institutional limitations and accepting of the cabinet's attempt to balance competing demands in legislative schemes.' Moreover, the increasing tendency of the court to suspend rather than nullify legislation provides the Cabinet with an opportunity to respond before the suspension expires. 'There is no clearer demonstration of coordinate constitutionalism or multiple guardians of the constitution, therefore, than the inter-institutional relationships that exist during suspended...

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