Since the introduction of the Canadian Charter of Rights and Freedoms in 1982, the question of judicial power and its relationship to parliamentary democracy has been an important one in Canadian politics. Some critics, suspicious of what they perceive as the "activism" of "unelected and unaccountable" judges, view the increased power of the Supreme Court as a direct challenge to parliament. But has parliamentary democracy been weakened by judicial responses to the Charter?
In Governing with the Charter, James Kelly clearly demonstrates that our current democratic deficit is not the result of the Supreme Court’s judicial activism. On the contrary, an activist framers’ intent surrounds the Charter, and the Supreme Court has simply, and appropriately, responded to this new constitutional environment. While the Supreme Court is admittedly a political actor, it is not the sole interpreter of the Charter, as the court, the cabinet, and bureaucracy all respond to the document, which has ensured the proper functioning of constitutional supremacy in Canada.
Kelly analyzes the parliamentary hearings on the Charter and also draws from interviews with public servants, senators, and members of parliament actively involved in appraising legislation to ensure that it is consistent with the Charter. He concludes that the principal institutional outcome of the Charter has been a marginalization of Parliament and that this is due to the Prime Minister’s decision on how to govern with the Charter.
A significant contribution to law and society studies, Governing with the Charter will be widely read by political scientists, legal scholars, parliamentarians, public servants, and students of the machinery of government.
- 2005, Short-listed - Donner Prize, Donner Foundation
Governing With the Charter offers a number of challenging insights into the new era of Canadian politics. The theory of multiple rights activism, the historical analysis of framers’ intent, the reconceptualization of judicial activism, and the normative implications for the future make this a most satisfying volume for the scholar of Canadian law, as well as for the general comparative courts researcher.
Perhaps the best single attempt at explaining Charter litigation and politics. It puts the debate over the Charter, Supreme Court, and parliamentary supremacy in a refreshingly new light, using not only some clear thinking about the problem but also, new information.
Part 1: Democratic Activism and Constitutional Politics
1 Democracy and Judicial Review
2 Constitutional Politics and the Charter
3 Framers’ Intent and the Parliamentary Arena
Part 2: Judicial Activism and the Supreme Court of Canada
4 The Supreme Court and Police Conduct
5 Guardians of the Constitution
Part 3: Legislative Activism and the Policy Process
6 The Charter and Canadian Federalism
7 Governing with the Charter of Rights
Health Care and the Charter
Legal Mobilization and Policy Change in Canada
Unions in Court
Organized Labour and the Charter of Rights and Freedoms
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