The Politics of the Charter: The Illusive Promise of Constitutional Rights (review)

Reviewed by: The Politics of the Charter: The Illusive Promise of Constitutional Rights Dennis Baker The Politics of the Charter: The Illusive Promise of Constitutional Rights by Andrew Petter. Toronto: University of Toronto Press, 2010, 256 pp. Cloth $65.00, paper $29.95. It is commonplace to attribute criticism of the Charter of Rights and Freedoms to an author’s displeasure with particular judicial outcomes; those on the political right, it is sometimes said, simply object to the progressive decisions made by the Supreme Court of Canada. Andrew Petter’s recent collection of essays cannot be so carelessly pigeonholed since it offers a stinging critique of the Charter that is largely process-based and from the left. Certainly Petter’s left-wing credentials cannot be doubted: his opening introduction includes a wistful reminiscence of boyhood summers spent at CCF picnics listening to Tommy Douglas and Robert Strachan. Petter’s critique of the Charter is not ideological—at least not in the programmatic sense—and he does not criticize the Court for failing to hew to a strictly leftist agenda. Rather, like some of the best scholarship on the Charter (Knopff and Morton 1992; Manfredi 2001), Petter is able to separate his political preferences from his institutional arguments convincingly. As someone who has been a legal scholar, partisan insider, and cabinet minister, Petter is ideally placed to judge the Charter’s impact on Canadian democracy. His understanding that the appropriate venue for political change is the legislature, not the courtroom, was clearly informed by his early experience as Saskatchewan premier Alan Blakeney’s speechwriter during the Patriation saga of the early 1980s. During his tussle with Trudeau, Blakeney argued that no social democrat “should voluntarily hand power from the political forum, where the policies of the majority find expression, to the judicial forum” (p. 6). Activists of Blakeney’s era typically viewed judges as elderly naysayers, largely out-of-step with popular opinion, and generally hostile to left-wing politics (something clearly evident when labour statutes were before the bench). Given this [End Page 133] background, why would any one expect judges to be the new vanguard of social justice? However, as Petter notes, the “alluring realm of rights” offered too tempting an escape from the “sordid world of politics” (p. 99); instead of protracted and messy fights to win the opinions of the public and their representatives, the judicial process could engender superior policies in a reasoned and principled fashion. While this vision would capture the imagination of many of his contemporaries, Petter saw the early Charter decisions of the Court as vividly demonstrating that the promise of constitutional rights—to deliver us from politics—was illusory and ultimately detrimental to our practice of self-government. The Politics of the Charter tracks Petter’s views over three decades, and the format of the book—a collection of previously published essays—carries both obvious drawbacks and unexpected benefits. The first half of the book consists of essays that are now very dated. For those keen on jurisprudential minutia, reading them can be an enjoyable trip down memory lane. Venerable “con law” classics like BC Motor Vehicles and Dolphin Delivery—case names that stand now as place-holders for the major premises and axioms they introduced—are subjected to in-depth and sustained critical scrutiny here. For those too young to remember them and for those who have forgotten the details, Petter’s close analysis of each case reveals how these decisions were hardly inevitable and, moreover, suggests that the Court got them wrong. Despite the tantalizing glimpse of a constitutional world lost, the general readership may find this historical expedition somewhat tedious and, more troublingly, they might be left confused about the current state of constitutional law (to his credit, Petter has updated the cases through endnotes in each chapter). The upside of the collected format is that one can easily trace the evolution of Petter’s thinking—itself a rewarding journey since Petter is such a thoughtful and open-minded observer. In short, the Younger Petter’s seeds of concern about the direction of early Charter jurisprudence grow into the Elder Petter’s skepticism of the Court’s place in...

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