Rights application doctrine and the clash of constitutionalisms in Canada

Canadian Journal of Political Science

Volumn 31, Issue 1, 1998, Pages 3-29

  Bateman, Thomas M J ^a  

^a UNIVERSITY OF ALBERTA   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0041169386     PISSN: 00084239     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0008423900008660     Document Type: Article

References (113)

1. For a sampling of this literature, see Peter Russell, "The Effect of a Charter of Rights on the Policy-Making Role of the Canadian Courts," Canadian Public Administration 25 (1982), 1-33; Ian Greene, The Charter of Rights (Toronto: Lorimer, 1989); Rainer Knopff and F. L. Morton, Charter Politics (Scarborough: Nelson, 1992); Janet Hiebert, Limiting Rights: The Dilemma of Judicial Review (Montreal: McGill-Queen's University Press, 1996); Christopher P. Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (Toronto: McClelland and Stewart, 1993); F. L. Morton, ed., Law, Politics, and the Judicial Process in Canada (2nd ed.; Calgary: University of Calgary Press, 1992); Andrew Heard, "The Charter in the Supreme Court: The Importance of Which Judges Hear an Appeal," this JOURNAL 24 (1991), 289-308; Avigail Eisenberg, "The Politics of Individual and Group Difference in Canadian Jurisprudence," this JOURNAL 27 (1994), 3-22; Christopher P. Manfredi, "'Appropriate and Just in the Circumstances': Public Policy and the Enforcement of Rights under the Canadian Charter of Rights and Freedoms," this JOURNAL 29 (1994), 435-64; and Richard Sigurdson, "Left- and Right-Wing Charterphobia in Canada: A Critique of the Critics," International Journal of Canadian Studies 5-6 (1993), 95-117.
2. For a sampling of this literature, see Peter Russell, "The Effect of a Charter of Rights on the Policy-Making Role of the Canadian Courts," Canadian Public Administration 25 (1982), 1-33; Ian Greene, The Charter of Rights (Toronto: Lorimer, 1989); Rainer Knopff and F. L. Morton, Charter Politics (Scarborough: Nelson, 1992); Janet Hiebert, Limiting Rights: The Dilemma of Judicial Review (Montreal: McGill-Queen's University Press, 1996); Christopher P. Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (Toronto: McClelland and Stewart, 1993); F. L. Morton, ed., Law, Politics, and the Judicial Process in Canada (2nd ed.; Calgary: University of Calgary Press, 1992); Andrew Heard, "The Charter in the Supreme Court: The Importance of Which Judges Hear an Appeal," this JOURNAL 24 (1991), 289-308; Avigail Eisenberg, "The Politics of Individual and Group Difference in Canadian Jurisprudence," this JOURNAL 27 (1994), 3-22; Christopher P. Manfredi, "'Appropriate and Just in the Circumstances': Public Policy and the Enforcement of Rights under the Canadian Charter of Rights and Freedoms," this JOURNAL 29 (1994), 435-64; and Richard Sigurdson, "Left- and Right-Wing Charterphobia in Canada: A Critique of the Critics," International Journal of Canadian Studies 5-6 (1993), 95-117.
3. For a sampling of this literature, see Peter Russell, "The Effect of a Charter of Rights on the Policy-Making Role of the Canadian Courts," Canadian Public Administration 25 (1982), 1-33; Ian Greene, The Charter of Rights (Toronto: Lorimer, 1989); Rainer Knopff and F. L. Morton, Charter Politics (Scarborough: Nelson, 1992); Janet Hiebert, Limiting Rights: The Dilemma of Judicial Review (Montreal: McGill-Queen's University Press, 1996); Christopher P. Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (Toronto: McClelland and Stewart, 1993); F. L. Morton, ed., Law, Politics, and the Judicial Process in Canada (2nd ed.; Calgary: University of Calgary Press, 1992); Andrew Heard, "The Charter in the Supreme Court: The Importance of Which Judges Hear an Appeal," this JOURNAL 24 (1991), 289-308; Avigail Eisenberg, "The Politics of Individual and Group Difference in Canadian Jurisprudence," this JOURNAL 27 (1994), 3-22; Christopher P. Manfredi, "'Appropriate and Just in the Circumstances': Public Policy and the Enforcement of Rights under the Canadian Charter of Rights and Freedoms," this JOURNAL 29 (1994), 435-64; and Richard Sigurdson, "Left- and Right-Wing Charterphobia in Canada: A Critique of the Critics," International Journal of Canadian Studies 5-6 (1993), 95-117.
4. For a sampling of this literature, see Peter Russell, "The Effect of a Charter of Rights on the Policy-Making Role of the Canadian Courts," Canadian Public Administration 25 (1982), 1-33; Ian Greene, The Charter of Rights (Toronto: Lorimer, 1989); Rainer Knopff and F. L. Morton, Charter Politics (Scarborough: Nelson, 1992); Janet Hiebert, Limiting Rights: The Dilemma of Judicial Review (Montreal: McGill-Queen's University Press, 1996); Christopher P. Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (Toronto: McClelland and Stewart, 1993); F. L. Morton, ed., Law, Politics, and the Judicial Process in Canada (2nd ed.; Calgary: University of Calgary Press, 1992); Andrew Heard, "The Charter in the Supreme Court: The Importance of Which Judges Hear an Appeal," this JOURNAL 24 (1991), 289-308; Avigail Eisenberg, "The Politics of Individual and Group Difference in Canadian Jurisprudence," this JOURNAL 27 (1994), 3-22; Christopher P. Manfredi, "'Appropriate and Just in the Circumstances': Public Policy and the Enforcement of Rights under the Canadian Charter of Rights and Freedoms," this JOURNAL 29 (1994), 435-64; and Richard Sigurdson, "Left- and Right-Wing Charterphobia in Canada: A Critique of the Critics," International Journal of Canadian Studies 5-6 (1993), 95-117.
5. For a sampling of this literature, see Peter Russell, "The Effect of a Charter of Rights on the Policy-Making Role of the Canadian Courts," Canadian Public Administration 25 (1982), 1-33; Ian Greene, The Charter of Rights (Toronto: Lorimer, 1989); Rainer Knopff and F. L. Morton, Charter Politics (Scarborough: Nelson, 1992); Janet Hiebert, Limiting Rights: The Dilemma of Judicial Review (Montreal: McGill-Queen's University Press, 1996); Christopher P. Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (Toronto: McClelland and Stewart, 1993); F. L. Morton, ed., Law, Politics, and the Judicial Process in Canada (2nd ed.; Calgary: University of Calgary Press, 1992); Andrew Heard, "The Charter in the Supreme Court: The Importance of Which Judges Hear an Appeal," this JOURNAL 24 (1991), 289-308; Avigail Eisenberg, "The Politics of Individual and Group Difference in Canadian Jurisprudence," this JOURNAL 27 (1994), 3-22; Christopher P. Manfredi, "'Appropriate and Just in the Circumstances': Public Policy and the Enforcement of Rights under the Canadian Charter of Rights and Freedoms," this JOURNAL 29 (1994), 435-64; and Richard Sigurdson, "Left- and Right-Wing Charterphobia in Canada: A Critique of the Critics," International Journal of Canadian Studies 5-6 (1993), 95-117.
6. For a sampling of this literature, see Peter Russell, "The Effect of a Charter of Rights on the Policy-Making Role of the Canadian Courts," Canadian Public Administration 25 (1982), 1-33; Ian Greene, The Charter of Rights (Toronto: Lorimer, 1989); Rainer Knopff and F. L. Morton, Charter Politics (Scarborough: Nelson, 1992); Janet Hiebert, Limiting Rights: The Dilemma of Judicial Review (Montreal: McGill-Queen's University Press, 1996); Christopher P. Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (Toronto: McClelland and Stewart, 1993); F. L. Morton, ed., Law, Politics, and the Judicial Process in Canada (2nd ed.; Calgary: University of Calgary Press, 1992); Andrew Heard, "The Charter in the Supreme Court: The Importance of Which Judges Hear an Appeal," this JOURNAL 24 (1991), 289-308; Avigail Eisenberg, "The Politics of Individual and Group Difference in Canadian Jurisprudence," this JOURNAL 27 (1994), 3-22; Christopher P. Manfredi, "'Appropriate and Just in the Circumstances': Public Policy and the Enforcement of Rights under the Canadian Charter of Rights and Freedoms," this JOURNAL 29 (1994), 435-64; and Richard Sigurdson, "Left- and Right-Wing Charterphobia in Canada: A Critique of the Critics," International Journal of Canadian Studies 5-6 (1993), 95-117.
7. For a sampling of this literature, see Peter Russell, "The Effect of a Charter of Rights on the Policy-Making Role of the Canadian Courts," Canadian Public Administration 25 (1982), 1-33; Ian Greene, The Charter of Rights (Toronto: Lorimer, 1989); Rainer Knopff and F. L. Morton, Charter Politics (Scarborough: Nelson, 1992); Janet Hiebert, Limiting Rights: The Dilemma of Judicial Review (Montreal: McGill-Queen's University Press, 1996); Christopher P. Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (Toronto: McClelland and Stewart, 1993); F. L. Morton, ed., Law, Politics, and the Judicial Process in Canada (2nd ed.; Calgary: University of Calgary Press, 1992); Andrew Heard, "The Charter in the Supreme Court: The Importance of Which Judges Hear an Appeal," this JOURNAL 24 (1991), 289-308; Avigail Eisenberg, "The Politics of Individual and Group Difference in Canadian Jurisprudence," this JOURNAL 27 (1994), 3-22; Christopher P. Manfredi, "'Appropriate and Just in the Circumstances': Public Policy and the Enforcement of Rights under the Canadian Charter of Rights and Freedoms," this JOURNAL 29 (1994), 435-64; and Richard Sigurdson, "Left- and Right-Wing Charterphobia in Canada: A Critique of the Critics," International Journal of Canadian Studies 5-6 (1993), 95-117.
8. For a sampling of this literature, see Peter Russell, "The Effect of a Charter of Rights on the Policy-Making Role of the Canadian Courts," Canadian Public Administration 25 (1982), 1-33; Ian Greene, The Charter of Rights (Toronto: Lorimer, 1989); Rainer Knopff and F. L. Morton, Charter Politics (Scarborough: Nelson, 1992); Janet Hiebert, Limiting Rights: The Dilemma of Judicial Review (Montreal: McGill-Queen's University Press, 1996); Christopher P. Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (Toronto: McClelland and Stewart, 1993); F. L. Morton, ed., Law, Politics, and the Judicial Process in Canada (2nd ed.; Calgary: University of Calgary Press, 1992); Andrew Heard, "The Charter in the Supreme Court: The Importance of Which Judges Hear an Appeal," this JOURNAL 24 (1991), 289-308; Avigail Eisenberg, "The Politics of Individual and Group Difference in Canadian Jurisprudence," this JOURNAL 27 (1994), 3-22; Christopher P. Manfredi, "'Appropriate and Just in the Circumstances': Public Policy and the Enforcement of Rights under the Canadian Charter of Rights and Freedoms," this JOURNAL 29 (1994), 435-64; and Richard Sigurdson, "Left- and Right-Wing Charterphobia in Canada: A Critique of the Critics," International Journal of Canadian Studies 5-6 (1993), 95-117.
9. For a sampling of this literature, see Peter Russell, "The Effect of a Charter of Rights on the Policy-Making Role of the Canadian Courts," Canadian Public Administration 25 (1982), 1-33; Ian Greene, The Charter of Rights (Toronto: Lorimer, 1989); Rainer Knopff and F. L. Morton, Charter Politics (Scarborough: Nelson, 1992); Janet Hiebert, Limiting Rights: The Dilemma of Judicial Review (Montreal: McGill-Queen's University Press, 1996); Christopher P. Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (Toronto: McClelland and Stewart, 1993); F. L. Morton, ed., Law, Politics, and the Judicial Process in Canada (2nd ed.; Calgary: University of Calgary Press, 1992); Andrew Heard, "The Charter in the Supreme Court: The Importance of Which Judges Hear an Appeal," this JOURNAL 24 (1991), 289-308; Avigail Eisenberg, "The Politics of Individual and Group Difference in Canadian Jurisprudence," this JOURNAL 27 (1994), 3-22; Christopher P. Manfredi, "'Appropriate and Just in the Circumstances': Public Policy and the Enforcement of Rights under the Canadian Charter of Rights and Freedoms," this JOURNAL 29 (1994), 435-64; and Richard Sigurdson, "Left- and Right-Wing Charterphobia in Canada: A Critique of the Critics," International Journal of Canadian Studies 5-6 (1993), 95-117.
10. For a sampling of this literature, see Peter Russell, "The Effect of a Charter of Rights on the Policy-Making Role of the Canadian Courts," Canadian Public Administration 25 (1982), 1-33; Ian Greene, The Charter of Rights (Toronto: Lorimer, 1989); Rainer Knopff and F. L. Morton, Charter Politics (Scarborough: Nelson, 1992); Janet Hiebert, Limiting Rights: The Dilemma of Judicial Review (Montreal: McGill-Queen's University Press, 1996); Christopher P. Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (Toronto: McClelland and Stewart, 1993); F. L. Morton, ed., Law, Politics, and the Judicial Process in Canada (2nd ed.; Calgary: University of Calgary Press, 1992); Andrew Heard, "The Charter in the Supreme Court: The Importance of Which Judges Hear an Appeal," this JOURNAL 24 (1991), 289-308; Avigail Eisenberg, "The Politics of Individual and Group Difference in Canadian Jurisprudence," this JOURNAL 27 (1994), 3-22; Christopher P. Manfredi, "'Appropriate and Just in the Circumstances': Public Policy and the Enforcement of Rights under the Canadian Charter of Rights and Freedoms," this JOURNAL 29 (1994), 435-64; and Richard Sigurdson, "Left- and Right-Wing Charterphobia in Canada: A Critique of the Critics," International Journal of Canadian Studies 5-6 (1993), 95-117.
11. Charles McIlwain, Constitutionalism, Ancient and Modern (Ithaca: Cornell University Press, 1947), 21-22.
12. Douglas Young, quoted in Edward Greenspon, "Former Minister, Ex-MP Heads for Ottawa as Lobbyist," The Globe and Mail (Toronto), July 4, 1997.
13. Alan Cairns, "The Embedded State," in Keith Banting, ed., State and Society: Canada in Comparative Perspective, Research Studies for the Royal Commission on the Economic Union and Development Prospects for Canada, Vol. 31 (Toronto: University of Toronto Press for Supply and Services Canada, 1986), 55.
14. Justice Peter Cory in R. v. Wholesale Travel Group (1991), 84 D.L.R. (4th) 161 (S.C.C.), 207. See also Joel Bakan et al., "Developments in Constitutional Law: The 1993-94 Term," Supreme Court Law Review 6 (1995), 73.
15. Justice Peter Cory in R. v. Wholesale Travel Group (1991), 84 D.L.R. (4th) 161 (S.C.C.), 207. See also Joel Bakan et al., "Developments in Constitutional Law: The 1993-94 Term," Supreme Court Law Review 6 (1995), 73.
16. McIlwain, Constitutionalism, Ancient and Modern; also Andrew Vincent, Theories of the State (Oxford: Basil Blackwell, 1987), 77ff.; Gordon J. Schochet, "Introduction: Constitutionalism, Liberalism, and the Study of Politics," in J. Roland Pennock and John W. Chapman, eds., Constitutionalism (New York: New York University Press, 1979), 34; Rogers Smith, Liberalism and American Constitutional Law (Cambridge: Harvard University Press, 1985); and Dario Castiglione, "The Political Theory of the Constitution," Political Studies 44 (1990), 422-23.
17. McIlwain, Constitutionalism, Ancient and Modern; also Andrew Vincent, Theories of the State (Oxford: Basil Blackwell, 1987), 77ff.; Gordon J. Schochet, "Introduction: Constitutionalism, Liberalism, and the Study of Politics," in J. Roland Pennock and John W. Chapman, eds., Constitutionalism (New York: New York University Press, 1979), 34; Rogers Smith, Liberalism and American Constitutional Law (Cambridge: Harvard University Press, 1985); and Dario Castiglione, "The Political Theory of the Constitution," Political Studies 44 (1990), 422-23.
18. McIlwain, Constitutionalism, Ancient and Modern; also Andrew Vincent, Theories of the State (Oxford: Basil Blackwell, 1987), 77ff.; Gordon J. Schochet, "Introduction: Constitutionalism, Liberalism, and the Study of Politics," in J. Roland Pennock and John W. Chapman, eds., Constitutionalism (New York: New York University Press, 1979), 34; Rogers Smith, Liberalism and American Constitutional Law (Cambridge: Harvard University Press, 1985); and Dario Castiglione, "The Political Theory of the Constitution," Political Studies 44 (1990), 422-23.
19. McIlwain, Constitutionalism, Ancient and Modern; also Andrew Vincent, Theories of the State (Oxford: Basil Blackwell, 1987), 77ff.; Gordon J. Schochet, "Introduction: Constitutionalism, Liberalism, and the Study of Politics," in J. Roland Pennock and John W. Chapman, eds., Constitutionalism (New York: New York University Press, 1979), 34; Rogers Smith, Liberalism and American Constitutional Law (Cambridge: Harvard University Press, 1985); and Dario Castiglione, "The Political Theory of the Constitution," Political Studies 44 (1990), 422-23.
20. McIlwain, Constitutionalism, Ancient and Modern; also Andrew Vincent, Theories of the State (Oxford: Basil Blackwell, 1987), 77ff.; Gordon J. Schochet, "Introduction: Constitutionalism, Liberalism, and the Study of Politics," in J. Roland Pennock and John W. Chapman, eds., Constitutionalism (New York: New York University Press, 1979), 34; Rogers Smith, Liberalism and American Constitutional Law (Cambridge: Harvard University Press, 1985); and Dario Castiglione, "The Political Theory of the Constitution," Political Studies 44 (1990), 422-23.
21. Gérard LaForest, "The Canadian Charter of Rights and Freedoms: An Overview," Canadian Bar Review 61 (1983), 20.
22. See, for example, Knopff and Morton, Charter Politics; Manfredi, Judicial Power and the Charter; and Anthony A. Peacock, ed., Rethinking the Constitution: Perspectives on Canadian Constitutional Reform, Interpretation, and Theory (Don Mills: Oxford University Press, 1996).
23. See, for example, Knopff and Morton, Charter Politics; Manfredi, Judicial Power and the Charter; and Anthony A. Peacock, ed., Rethinking the Constitution: Perspectives on Canadian Constitutional Reform, Interpretation, and Theory (Don Mills: Oxford University Press, 1996).
24. See, for example, Knopff and Morton, Charter Politics; Manfredi, Judicial Power and the Charter; and Anthony A. Peacock, ed., Rethinking the Constitution: Perspectives on Canadian Constitutional Reform, Interpretation, and Theory (Don Mills: Oxford University Press, 1996).
25. There are ways in which criminal law can be understood in terms other than liberal constitutionalism. For instance, the Charter imposes several positive duties upon police officers and courts. Upon arrest or detention, police officers must inform persons of certain rights. Courts have declared that if Charter rights to a fair trial are to be protected then the accused must be informed of access to legal representation. It is foreseeable that courts will interpret the Charter to require that lawyers be available to an accused or detained person, thus imposing affirmative duties to act upon the state.
26. Hunter v. Southam, [1984] 2 S.C.R. 145.
27. Ibid., 155-56.
28. R. v. Oakes, (1986), 26 D.L.R. (4th) 200 (S.C.C.).
29. See David Beatty, Talking Heads and the Supremes: The Canadian Production of the Constitutional Review (Toronto: Carswell, 1990); David Beatty, "A Conservative's Court: The Politicization of Law," University of Toronto Law Journal 41 (1991), 147-63; and David Beatty, Constitutional Law in Theory and Practice (Toronto: University of Toronto Press, 1995). While the structure of the test is liberal constitutionalist, the set of values said by the Supreme Court to be implicit in the phrase "free and democratic" is another matter.
30. See David Beatty, Talking Heads and the Supremes: The Canadian Production of the Constitutional Review (Toronto: Carswell, 1990); David Beatty, "A Conservative's Court: The Politicization of Law," University of Toronto Law Journal 41 (1991), 147-63; and David Beatty, Constitutional Law in Theory and Practice (Toronto: University of Toronto Press, 1995). While the structure of the test is liberal constitutionalist, the set of values said by the Supreme Court to be implicit in the phrase "free and democratic" is another matter.
31. See David Beatty, Talking Heads and the Supremes: The Canadian Production of the Constitutional Review (Toronto: Carswell, 1990); David Beatty, "A Conservative's Court: The Politicization of Law," University of Toronto Law Journal 41 (1991), 147-63; and David Beatty, Constitutional Law in Theory and Practice (Toronto: University of Toronto Press, 1995). While the structure of the test is liberal constitutionalist, the set of values said by the Supreme Court to be implicit in the phrase "free and democratic" is another matter.
32. Castiglione, "The Political Theory of the Constitution," 423.
33. Peter Hogg, "Comparison of the Canadian Charter of Rights and Freedoms with the Canadian Bill of Rights," in Walter Tarnopolsky and Gerald Beaudoin, eds., The Canadian Charter of Rights and Freedoms: Commentary (Toronto: Carswell, 1982), 7.
34. Peter Hogg, Constitutional Law of Canada (3rd ed.; Toronto: Carswell, 1992), 841-42.
35. See Hogg, "Comparison of the Canadian Charter with the Bill of Rights"; Katherine Swinton, "Application of the Canadian Charter of Rights and Freedoms (ss. 30, 31, 32)," in Tarnopolsky and Beaudoin, eds., The Canadian Charter of Rights and Freedoms, 41-59; A. LaForest, Anne McLellan and Bruce P. Elman, "To Whom Does the Charter Apply? Some Recent Cases on Section 32," Alberta Law Review 24 (1986), 361-75; and Hogg, Constitutional Law of Canada, chap. 34.
36. See Hogg, "Comparison of the Canadian Charter with the Bill of Rights"; Katherine Swinton, "Application of the Canadian Charter of Rights and Freedoms (ss. 30, 31, 32)," in Tarnopolsky and Beaudoin, eds., The Canadian Charter of Rights and Freedoms, 41-59; A. LaForest, Anne McLellan and Bruce P. Elman, "To Whom Does the Charter Apply? Some Recent Cases on Section 32," Alberta Law Review 24 (1986), 361-75; and Hogg, Constitutional Law of Canada, chap. 34.
37. See Hogg, "Comparison of the Canadian Charter with the Bill of Rights"; Katherine Swinton, "Application of the Canadian Charter of Rights and Freedoms (ss. 30, 31, 32)," in Tarnopolsky and Beaudoin, eds., The Canadian Charter of Rights and Freedoms, 41-59; A. LaForest, Anne McLellan and Bruce P. Elman, "To Whom Does the Charter Apply? Some Recent Cases on Section 32," Alberta Law Review 24 (1986), 361-75; and Hogg, Constitutional Law of Canada, chap. 34.
38. See Hogg, "Comparison of the Canadian Charter with the Bill of Rights"; Katherine Swinton, "Application of the Canadian Charter of Rights and Freedoms (ss. 30, 31, 32)," in Tarnopolsky and Beaudoin, eds., The Canadian Charter of Rights and Freedoms, 41-59; A. LaForest, Anne McLellan and Bruce P. Elman, "To Whom Does the Charter Apply? Some Recent Cases on Section 32," Alberta Law Review 24 (1986), 361-75; and Hogg, Constitutional Law of Canada, chap. 34.
39. For a thorough account of the attack on legal liberalism in the American legal academy, see Laura Kalman, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996). Such a history of the Canadian legal academy remains to be written, but some insights may be gained from F. L. Morton and Rainer Knopff, "The Supreme Court as the Vanguard of the Intelligentsia: The Charter Movement as Postmaterialist Politics," in Janet Ajzenstat, ed., Canadian Constitutionalism, 1791-1991 (Ottawa: Canadian Study of Parliament Group, 1992), 54-78; F. L. Morton, "The Charter Revolution and the Court Party," Osgoode Hall Law Journal 30 (1992), 627-52; and Rainer Knopff and F. L. Morton, "Canada's Court Party," in Peacock, ed., Rethinking the Constitution, 63-87.
40. For a thorough account of the attack on legal liberalism in the American legal academy, see Laura Kalman, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996). Such a history of the Canadian legal academy remains to be written, but some insights may be gained from F. L. Morton and Rainer Knopff, "The Supreme Court as the Vanguard of the Intelligentsia: The Charter Movement as Postmaterialist Politics," in Janet Ajzenstat, ed., Canadian Constitutionalism, 1791-1991 (Ottawa: Canadian Study of Parliament Group, 1992), 54-78; F. L. Morton, "The Charter Revolution and the Court Party," Osgoode Hall Law Journal 30 (1992), 627-52; and Rainer Knopff and F. L. Morton, "Canada's Court Party," in Peacock, ed., Rethinking the Constitution, 63-87.
41. For a thorough account of the attack on legal liberalism in the American legal academy, see Laura Kalman, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996). Such a history of the Canadian legal academy remains to be written, but some insights may be gained from F. L. Morton and Rainer Knopff, "The Supreme Court as the Vanguard of the Intelligentsia: The Charter Movement as Postmaterialist Politics," in Janet Ajzenstat, ed., Canadian Constitutionalism, 1791-1991 (Ottawa: Canadian Study of Parliament Group, 1992), 54-78; F. L. Morton, "The Charter Revolution and the Court Party," Osgoode Hall Law Journal 30 (1992), 627-52; and Rainer Knopff and F. L. Morton, "Canada's Court Party," in Peacock, ed., Rethinking the Constitution, 63-87.
42. For a thorough account of the attack on legal liberalism in the American legal academy, see Laura Kalman, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996). Such a history of the Canadian legal academy remains to be written, but some insights may be gained from F. L. Morton and Rainer Knopff, "The Supreme Court as the Vanguard of the Intelligentsia: The Charter Movement as Postmaterialist Politics," in Janet Ajzenstat, ed., Canadian Constitutionalism, 1791-1991 (Ottawa: Canadian Study of Parliament Group, 1992), 54-78; F. L. Morton, "The Charter Revolution and the Court Party," Osgoode Hall Law Journal 30 (1992), 627-52; and Rainer Knopff and F. L. Morton, "Canada's Court Party," in Peacock, ed., Rethinking the Constitution, 63-87.
43. "Postliberal" has been used by Hester Lessard, "The Idea of the 'Private': A Discussion of State Action Doctrine and Separate Sphere Ideology," Dalhousie Law Journal 10 (1986), 107-37, and by Richard Devlin, "Introduction," in Richard Devlin, ed., Canadian Perspectives on Legal Theory (Toronto: Emond Montgomery Publications, 1991), 5. For a more philosophical treatment of post-liberalism, see John Gray, Post-Liberalism: Studies in Political Thought (London: Routledge, 1993). His position is that one's preferences for a liberal society can no longer be founded on nature, contract or any other ahistorical construct.
44. "Postliberal" has been used by Hester Lessard, "The Idea of the 'Private': A Discussion of State Action Doctrine and Separate Sphere Ideology," Dalhousie Law Journal 10 (1986), 107-37, and by Richard Devlin, "Introduction," in Richard Devlin, ed., Canadian Perspectives on Legal Theory (Toronto: Emond Montgomery Publications, 1991), 5. For a more philosophical treatment of post-liberalism, see John Gray, Post-Liberalism: Studies in Political Thought (London: Routledge, 1993). His position is that one's preferences for a liberal society can no longer be founded on nature, contract or any other ahistorical construct.
45. "Postliberal" has been used by Hester Lessard, "The Idea of the 'Private': A Discussion of State Action Doctrine and Separate Sphere Ideology," Dalhousie Law Journal 10 (1986), 107-37, and by Richard Devlin, "Introduction," in Richard Devlin, ed., Canadian Perspectives on Legal Theory (Toronto: Emond Montgomery Publications, 1991), 5. For a more philosophical treatment of post-liberalism, see John Gray, Post-Liberalism: Studies in Political Thought (London: Routledge, 1993). His position is that one's preferences for a liberal society can no longer be founded on nature, contract or any other ahistorical construct.
46. Joel Handler, "Postmodernism, Protest, and the New Social Movements," Law & Society Review 26 (1992), 697-731. In this article Handler criticizes postmodernism for failing to muster a progressive vision of institutional political action needed to produce progressive social transformation. The quietistic tendencies of postmodernism sound its death knell, he argues.
47. Kalman, The Strange Career of Legal Liberalism, and Brown v. Board of Education [347 US 483 (1954)].
48. Mark Warren, "Liberal Constitutionalism as Ideology: Marx and Habermas," Political Theory 17 (1989), 511-34.
49. Allan C. Hutchinson, "Crits and Cricket: A Deconstructive Spin (Or Was It a Googly?)," in Devlin, ed., Canadian Perspectives on Legal Theory, 181-206.
50. Cass R. Sunstein, The Partial Constitution (Cambridge: Harvard University Press, 1993).
51. James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995), 26.
52. Ibid., 25-26.
53. Sunstein, The Partial Constitution.
54. Tully, Strange Multiplicity, 175.
55. Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (2nd ed.; Toronto: Thompson Educational Publishing, 1994), 84. See also R. A. MacDonald, "Postscript and Prelude - The Jurisprudence of the Charter: Eight Theses," Supreme Court Law Review 4 (1982), 321-50; Brian Etherington, "Notes of Cases: RWDSU v. Dolphin Delivery," Canadian Bar Review 66 (1987), 818-38; and Lessard, "The Idea of the 'Private.'"
56. Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (2nd ed.; Toronto: Thompson Educational Publishing, 1994), 84. See also R. A. MacDonald, "Postscript and Prelude - The Jurisprudence of the Charter: Eight Theses," Supreme Court Law Review 4 (1982), 321-50; Brian Etherington, "Notes of Cases: RWDSU v. Dolphin Delivery," Canadian Bar Review 66 (1987), 818-38; and Lessard, "The Idea of the 'Private.'"
57. Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (2nd ed.; Toronto: Thompson Educational Publishing, 1994), 84. See also R. A. MacDonald, "Postscript and Prelude - The Jurisprudence of the Charter: Eight Theses," Supreme Court Law Review 4 (1982), 321-50; Brian Etherington, "Notes of Cases: RWDSU v. Dolphin Delivery," Canadian Bar Review 66 (1987), 818-38; and Lessard, "The Idea of the 'Private.'"
58. Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (2nd ed.; Toronto: Thompson Educational Publishing, 1994), 84. See also R. A. MacDonald, "Postscript and Prelude - The Jurisprudence of the Charter: Eight Theses," Supreme Court Law Review 4 (1982), 321-50; Brian Etherington, "Notes of Cases: RWDSU v. Dolphin Delivery," Canadian Bar Review 66 (1987), 818-38; and Lessard, "The Idea of the 'Private.'"
59. Morris Manning, Rights, Freedoms, and the Courts: A Practical Analysis of the Constitution Act, 1982 (Toronto: Emond Montgomery Publications, 1982); Dale Gibson, "The Charter of Rights and the Private Sector," Manitoba Law Review 12 (1982), 213-19, and "Distinguishing the Governors from the Governed: The Meaning of 'Government' under Section 32(1) of the Charter," Manitoba Law Review 13 (1983), 505-22. These commentators acknowledge that some Charter provisions bind only government - for example, sections 3-5, 33 and so on - but that these provisions should not and do not determine the general scope of Charter application.
60. Morris Manning, Rights, Freedoms, and the Courts: A Practical Analysis of the Constitution Act, 1982 (Toronto: Emond Montgomery Publications, 1982); Dale Gibson, "The Charter of Rights and the Private Sector," Manitoba Law Review 12 (1982), 213-19, and "Distinguishing the Governors from the Governed: The Meaning of 'Government' under Section 32(1) of the Charter," Manitoba Law Review 13 (1983), 505-22. These commentators acknowledge that some Charter provisions bind only government - for example, sections 3-5, 33 and so on - but that these provisions should not and do not determine the general scope of Charter application.
61. Morris Manning, Rights, Freedoms, and the Courts: A Practical Analysis of the Constitution Act, 1982 (Toronto: Emond Montgomery Publications, 1982); Dale Gibson, "The Charter of Rights and the Private Sector," Manitoba Law Review 12 (1982), 213-19, and "Distinguishing the Governors from the Governed: The Meaning of 'Government' under Section 32(1) of the Charter," Manitoba Law Review 13 (1983), 505-22. These commentators acknowledge that some Charter provisions bind only government - for example, sections 3-5, 33 and so on - but that these provisions should not and do not determine the general scope of Charter application.
62. De Montigny, "Section 32 and Equality Rights," 589.
63. Ibid., 593.
64. Ibid., 594 (emphasis added).
65. Some commentators suggest that considerations of institutional capacity -whether the courts are actually fit to apply the constitution intelligently and expertly to the minutiae of "private" life - should govern questions of Charter application. For a discussion, see Michael Kanter, "The Government Action Doctrine and the Public/Private Distinction: Searching for Private Action," Queen's Law Journal 15 (1990), 33-63.
66. See, for example, Mandel, The Charter of Rights and the Legalization of Politics; and Allan Hutchinson and Patrick Monahan, "Democracy and the Rule of Law," in Allan Hutchinson and Patrick Monahan, eds., The Rule of Law: Ideal or Ideology? (Toronto: Carswell, 1987), 97-123; and Patrick Monahan, Politics and the Constitution: The Charter, Federalism, and the Supreme Court of Canada (Toronto: Carswell, 1987), chaps. 3-6. Anthony Arblaster admits that democratic principles should perhaps not apply to all forms of social organization but certainly to more than they do at present. See his Democracy (2nd ed.; Minneapolis: University of Minnesota Press, 1994).
67. See, for example, Mandel, The Charter of Rights and the Legalization of Politics; and Allan Hutchinson and Patrick Monahan, "Democracy and the Rule of Law," in Allan Hutchinson and Patrick Monahan, eds., The Rule of Law: Ideal or Ideology? (Toronto: Carswell, 1987), 97-123; and Patrick Monahan, Politics and the Constitution: The Charter, Federalism, and the Supreme Court of Canada (Toronto: Carswell, 1987), chaps. 3-6. Anthony Arblaster admits that democratic principles should perhaps not apply to all forms of social organization but certainly to more than they do at present. See his Democracy (2nd ed.; Minneapolis: University of Minnesota Press, 1994).
68. See, for example, Mandel, The Charter of Rights and the Legalization of Politics; and Allan Hutchinson and Patrick Monahan, "Democracy and the Rule of Law," in Allan Hutchinson and Patrick Monahan, eds., The Rule of Law: Ideal or Ideology? (Toronto: Carswell, 1987), 97-123; and Patrick Monahan, Politics and the Constitution: The Charter, Federalism, and the Supreme Court of Canada (Toronto: Carswell, 1987), chaps. 3-6. Anthony Arblaster admits that democratic principles should perhaps not apply to all forms of social organization but certainly to more than they do at present. See his Democracy (2nd ed.; Minneapolis: University of Minnesota Press, 1994).
69. See, for example, Mandel, The Charter of Rights and the Legalization of Politics; and Allan Hutchinson and Patrick Monahan, "Democracy and the Rule of Law," in Allan Hutchinson and Patrick Monahan, eds., The Rule of Law: Ideal or Ideology? (Toronto: Carswell, 1987), 97-123; and Patrick Monahan, Politics and the Constitution: The Charter, Federalism, and the Supreme Court of Canada (Toronto: Carswell, 1987), chaps. 3-6. Anthony Arblaster admits that democratic principles should perhaps not apply to all forms of social organization but certainly to more than they do at present. See his Democracy (2nd ed.; Minneapolis: University of Minnesota Press, 1994).
70. Joel C. Bakan, "Constitutional Interpretation and Social Change: You Can't Always Get What You Want (or What You Need)," in Devlin ed., Canadian Perspectives on Legal Theory, 445-66. See also his Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997).
71. Joel C. Bakan, "Constitutional Interpretation and Social Change: You Can't Always Get What You Want (or What You Need)," in Devlin ed., Canadian Perspectives on Legal Theory, 445-66. See also his Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997).
72. Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441.
73. RWDSU v. Dolphin Delivery (1986), 33 D.L.R. (4th) 174 (S.C.C.).
74. Ibid., 195.
75. Ibid., 196.
76. Ibid., 198.
77. While the reaction to the Charter application issue in Dolphin was nearly vitriolic, nary a peep was heard when the Court in Daigle v. Tremblay (1989), 63 D.L.R. (4th) 634 (S.C.C.) refused to apply the Charter to the Quebec Civil Code, notwithstanding the fact that the Code is legislation.
78. The Court did decide that section 2(b) of the Charter protected peaceful picketing as a form of expression. Such a finding was unnecessary to the disposition of the case, since it would arise only after the threshold application issue was settled in the union's favour. One suspects that the section 2 question was raised to blunt the otherwise negative impact of the decision on the labour movement.
79. Edward P. Belobaba, "The Charter of Rights and Private Litigation: The Dilemma of Dolphin Delivery," in Neil R. Finkelstein and Brian MacLeod Rogers, eds., Charter Issues in Civil Cases (Toronto: Carswell, 1988), 29-46.
80. Rahey v. The Queen, [1987] 1 S.C.R. 588.
81. Ibid., 633.
82. B.C. Government Employees Union v. B.C. (A.G.) (1988), 53 D.L.R. (4th) 1 (S.C.C.), 22. See also, Slaight Communications Inc. v. Davidson (1989), 59 D.L.R. (4th) 416 (S.C.C.) and Young v. Young (1993), 18 C.R.R. (2d) 41 (S.C.C.) where the Court held that when legislation confers discretionary authority to courts or quasi-judicial boards, that authority must be exercised in a manner consistent with the Charter.
83. Respectively, R. v. Swain (1991), 63 C.C.C. (3d) 481 (S.C.C.); Salituro v. The Queen (1991), 68 C.C.C. (3d) 289 (S.C.C.); and Dagenais v. CBC (1994), 120 D.L.R. (4th) 12 (S.C.C.).
84. Hill v. Church of Scientology of Toronto (1995), 126 D.L.R. (4th), 129 (S.C.C.).
85. New York Times Co. v. Sullivan, 376 U.S. 254 (1964), 279-280.
86. Hill v. Scientology, 157.
87. Ibid., 189-90.
88. Patrick Macklem, "Constitutional Ideologies," Ottawa Law Review 20 (1988), 150.
89. R. v. Oakes (1986), 26 D.L.R. (4th) 200 (S.C.C.), 225.
90. McKinney v. University of Guelph (1990), 2 C.R.R. (2d) 1 (S.C.C.). Other cases decided concurrently were Douglas/Kwantlen Faculty Association v. Douglas College (1990), 2 C.R.R. (2d) 157 (S.C.C.), which decided that a community college in British Columbia was caught by section 32; Harrison v. University of British Columbia (1990), 2 C.R.R. (2d) 193 (S.C.C.), which decided that the university was not caught by section 32; and Stoffman v. Vancouver General Hospital (1990), 2 C.R.R. (2d) 215 (S.C.C.), which held that the hospital's regulations respecting the age at which doctors can hold admitting privileges are beyond Charter's reach. Stoffman was applied in R. v. Dersch (1993), 18 C.R.R. (2d) 87 (S.C.C.) to the extent that a hospital was found not to be caught by section 32. However, the Court speculated that a doctor can be found to be acting in a government capacity when taking blood samples on order by police.
91. McKinney v. University of Guelph, 22-24.
92. Ibid., 94.
93. Lavigne v. OPSEU (1991), 81 D.L.R. (4th) 545 (S.C.C.), 564.
94. Ibid., 569.
95. Ibid., 618.
96. Ibid., 621.
97. Ibid., 622.
98. R. v. Carosella, [1997] 1 S.C.R. 80. See also R. v. O'Connor, [1995] 4 S.C.R. 411.
99. R. v. Carosella, 114 (emphasis in original).
100. Ibid. L'Heureux-Dubé wrote a strong dissent, among other things defending the Centre's policy and conduct. She was unwilling to find that the Charter was triggered here by way of a section 32 analysis, implicit or otherwise, of the Centre's governmental status. Instead she merely declared that the Charter was triggered by the fact of the prosecution itself (ibid., 119).
101. Adler v. Ontario, [1996] 3 S.C.R. 609.
102. Ibid., 648.
103. Ibid., 702.
104. Ibid., 708.
105. Ibid., 657.
106. The Supreme Court will soon revisit the state action/inaction issue. In Vriend v. Alberta (1996), 132 D.L.R. (4th) 595, the issue before the Court of Appeal was whether the absence of a provision in Alberta's human rights legislation of a provision prohibiting discrimination on the basis of sexual orientation was a violation of Charter equality rights. A majority of the Court said no, basing its decision on the ground that the Charter can only be triggered by positive state action. The dissenting judge disagreed, arguing that "[t]his is a case where legislative silence indeed draws a distinction for the purposes of s. 15(1) of the Charter." The decision is being appealed. The Supreme Court has already partially adopted the principle that state inaction can trigger Charter scrutiny. An underinclusive list of beneficiaries of a government programme can be found constitutionally suspect. See Schachter v. Canada (1992), 93 D.L.R. (4th), 1 (S.C.C.).
107. R. v. Morgentaler, [1988] 1 S.C.R. 30, 164.
108. McKinney v. University of Guelph, 92.
109. Andrews v. Law Society of Upper Canada (1989), 56 D.L.R. (4th) 1 (S.C.C.). Postliberal critics of the Supreme Court, however, argue that the Court has introduced a less substantive vision of equality rights into section 15 jurisprudence in the 1990s, confirming for them that liberalism is alive and well in the Supreme Court. See Hester Lessard et al., "Developments in Constitutional Law: The 1994-95 Term," Supreme Court Law Review 1 (1996), 81-156.
110. Thomson Newspapers Ltd. v. Canada, [1990] 1 S.C.R. 425, 510; also see 535.
111. R. v. Wholesale Travel Group, 206.
112. See, for example, Rainer Knopff and F. L. Morton, "Nation-Building and the Canadian Charter of Rights and Freedoms," in Alan Cairns and Cynthia Williams, eds., Constitutionalism, Citizenship and Society in Canada, Research Studies for the Royal Commission on the Economic Union and Development Prospects for Canada, Vol. 33 (Toronto: University of Toronto Press for Supply and Services Canada, 1985), 133-82; and Kenneth McRoberts, Misconceiving Canada: The Struggle for National Unity (Toronto: Oxford University Press, 1997).
113. See, for example, Rainer Knopff and F. L. Morton, "Nation-Building and the Canadian Charter of Rights and Freedoms," in Alan Cairns and Cynthia Williams, eds., Constitutionalism, Citizenship and Society in Canada, Research Studies for the Royal Commission on the Economic Union and Development Prospects for Canada, Vol. 33 (Toronto: University of Toronto Press for Supply and Services Canada, 1985), 133-82; and Kenneth McRoberts, Misconceiving Canada: The Struggle for National Unity (Toronto: Oxford University Press, 1997).