Académique Documents
Professionnel Documents
Culture Documents
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
http://about.jstor.org/terms
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted
digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about
JSTOR, please contact support@jstor.org.
Sage Publications, Ltd. is collaborating with JSTOR to digitize, preserve and extend access to
International Political Science Review / Revue internationale de science politique
This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
International Political Science Review (1994), Vol. 15, No. 2, 165-175
PETER H. RUSSELL
Introduction
This paper focuses on Canada's recent experience with what Torbjorn Vallinder
(1992) terms "judicialization from without," even though "judicialization from
within" in Canada as elsewhere may be the more pervasive, though less spectacu-
lar, aspect of expanded judicial power. As an example ofjudicialization from within,
Vallinder refers to the judicialization of decision-making within Britain's adminis-
trative tribunals. [See, also, pp. 91-99 this issue-Ed.] There has certainly been
plenty of that in Canada. The insistence on judicial due process in ever widening
realms of public administration is part and parcel of the expanding catalogue of
justiciable rights that has been a hallmark of modernizing societies as they moved
from Gemeinschaft to Gesellschaft. (Tonnies, 1965). The adoption of national and inter-
national bills of rights, the primary foundation of judicialization from without,
reflects and reinforces this tendency.
This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
166 Canadian Constraints on Judicialization from Without
executive acts has undoubtedly expanded the Canadian judiciary's sphere of activ-
ity, and in that sense has increased the judiciary's power. However, this expansion
of judicial power has not necessarily been "at the expense" (to use Vallinder's
phrase) of the legislative or executive branches. The main impact of a constitu-
tional bill of rights on the political system, if Canada's experience is a guide, may
be less a transfer of power to the judiciary than a general transformation of the
nature of political life. That transformation might be better summed up by the
phrase "juridicalization," as used in Professor Shapiro's paper (1992), than by the
term "judicialization." [See pp. 101-112, this issue-Ed.]
When Canadians were debating whether to adopt a comprehensive constitutional
bill of rights, a few academics and politicians drew attention to such a measure's
tendency to expand judicial power. Indeed, at the time the Charter was adopted
the present writer stated that its main effect on the governmental process in
Canada would be "a tendency to judicialize politics and politicize the judiciary"
(Russell, 1983: 50-51). It may seem ironic that ten years after the Canadian
Charter came into force we find the same person presenting a paper on the limits
to judicialization in Canada. The purpose in doing so is not to recant the earlier
prediction but to illuminate some of the key factors that shape and limit the conse-
quences of the judicialization process.
This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
PETER H. RUSSELL 167
This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
168 Canadian Constraints on Judicialization from Without
This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
PETER H. RUSSELL 169
Although the Charter has not judicialized Canadian politics in the sense of bring-
ing about a major transfer of policy-making power to the courts, it could have a
long-term impact on policy by shaping how Canadians think about political values.
I have already commented on the Charter's highly divisive influence on attitudes
to constitutional politics in Canada.
The Charter could also have a potent effect on policies concerned with the distri-
bution of wealth and power in the Canadian variant of welfare-capitalism if its
concern about restricting government activities came to be identified in the public
mind with social progress. In other words, if most Canadians in English Canada
come to believe that their Charter rights are more fundamental than any other
rights or interests they might have, then the direction of policy and the entire polit-
ical spectrum might well shift to the right. Some would argue that the emergence
of a new right-wing Reform Party in Canada, with policies resembling those of the
American Republican Party, is evidence that this shift is occurring.
This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
170 Canadian Constraints on Judicialization fom Without
779). In Irwin Toy, Dickson made it clear that the right of liberty guaranteed in
Section 7 was not to be used to protect corporate commercial rights (1989, 1 SCR
927).
The Supreme Court's treatment of the Charter's Section 15, which set out equal-
ity rights, has shown a similar limiting tendency. That Section, as written, was
potentially wide open. It inscribes a general right to equality "before and under the
law" as well as "equal protection and equal benefit of the law without discrimina-
tion" and then gives as particular examples of unconstitutional discrimination,
"discrimination based on race, national or ethnic origin, colour, religion, sex, age
or mental or physical disability." In interpreting this Section, the Supreme Court
has in effect reduced Section 15's coverage to laws that harm or prejudice groups
covered by or that are analogous to the Section's enumerated categories (Andrews
v. Law Society ofB.C. 1989, 1 SCR 143). This immunizes a great many discriminatory
laws-for instance most areas of business regulation-from judicial review. And
even to laws that discriminate on the explicitly prohibited grounds, the Court
applies no doctrine of "strict scrutiny." Under the Charter's "reasonable limits"
clause, the Court can defer to legislative judgment on the balance to strike between
constitutional equality rights and other important societal interests. It did just that,
for instance, in dismissing a challenge by university professors to policies requiring
mandatory retirement at age 65 (McKinney v. Univ. of Guelph 1990, 3 SCR 229). Most
recently, the Supreme Court has ruled that where a social welfare law is found to
be unconstitutional because of its under-inclusiveness the courts must not extend
the law's coverage if doing so would have major budgetary consequences.3
This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
PETER H. RUSSELL 171
Lamer reflects the desire of most members of the Court not to push their power
of judicial review so far as to antagonize leaders in other branches of government
or the mainstream of public opinion.
This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
172 Canadian Constraints on Judicialization from Without
This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
PETER H. RUSSELL 173
decision-making in the field of socio-economic policy has not stirred up much public
controversy. There are some on the left who say that they would like to see the
courts enforcing positive entitlements to such things as "comprehensive health
care," "high quality education," "adequate social service and benefits," "the
integrity of the environment," "full employment," and a "reasonable standard of
living."7 But it is most doubtful if a majority of Canadians-left, right, or centre-
could come to believe in such judicial fairy tales. In Canada, judicialization of
politics from without is not likely to exceed its modest expansion under the Charter
of Rights.
Conclusions
This brief overview of Canada's ten-year experience with a new constitutional bill
of rights suggests three general conclusions about the judicialization of politics
stemming from such a constitutional change.
First, the main impact of a bill of rights is not so much a transfer of power to
the judiciary as a more general judicialization of politics, in which the language and
norms of constitutional rights, to use Alec Stone's phrase, "permeate and are
absorbed by, political discourse" (Stone, 1992). In the Canadian case, this process
of judicialization would seem to be the principal outcome of those situations in
which the Charter of Rights has dealt the courts into controversial public issues.
Court decisions on language rights and abortion, for instance, rather than remov-
ing these issues from the political realm, returned them to political contention
recast in less compromising and more strident terms-making consensual resolu-
tion of the issues more difficult than before.
Second, a constitutional bill of rights codifying what government must abstain
from doing to its citizens has a limited impact on public policy. The policy field that
has felt the greatest impact of Canada's Charter is criminal justice. With the excep-
tion of Quebec's language policy, social and economic policies of central importance
to elected governments have not been significantly affected by the Charter.
Judicialization resulting from the Charter has not led to a power struggle between
the judiciary and the political branches. On the contrary, politicians are happy to
off-load on to the courts responsibility for making decisions on divisive moral issues
such as abortion, pornography, and Sunday-closing.
Third, the judiciary itself can limit the scope ofjudicialization by decision-making
strategies that confine the impact of a constitutional charter to policy fields where
judges believe they have competence and legitimacy. This has certainly happened
in the Canadian case. Although the Supreme Court of Canada has set a fairly
activist standard in applying the Charter to criminal law and procedure, the Court
has minimized the Charter's impact on issues involving the interests of business
and labour, and is very cautious about making decisions that impose fiscal burdens
on government. Ironically, Canadian judges may underestimate their own legiti-
macy and overestimate the legitimacy of elected politicians. In an age that has
become so cynical about representative democracy, the same may be true of judges
in other countries.
Finally, the inclination of Canada's constitution makers to adopt a "Social
Charter," establishing positive constitutional rights to social benefits, raises an
important question for the future. The demand for the constitutionalization of such
positive entitlements is a product of the juridicalization of politics fostered by the
Charter of Rights. Still, if the Social Charter is detached from judicial review as its
This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
174 Canadian Constraints on Judicialization from Without
Notes
1. The other constitution with a clause most resembling Canada's is that of Jamaica.
However, it requires a two-thirds majority of both Houses of Jamaica's Parliament. For
further comparisons see Letourneau, 1991.
2. In the round of constitutional politics that followed defeat of the Meech Lake Accord, the
Conservative federal government proposed inserting property rights in the Charter but
found insufficient support to continue with this proposal.
3. The judgment was given in The Queen v. Schachter on July 9, 1992. The case has not yet
been reported in the Supreme Court Reports.
4. The judgment was given in Deepak Kumar Sharma v. The Queen on March 26, 1992. The
decision has not yet been reported in the Supreme Court Reports.
5. The new criminal code provisions on abortion were blocked by the Senate. The new "rape-
shield" law, at the time of writing, is still at the drafting stage.
6. The judgment was given in Butler v. The Queen on February 27, 1992. The decision is not
yet reported in the Supreme Court Reports.
7. These are some of the social policy standards to be included in the social covenant and
economic declaration proposed in the Report on a Renewed Canada (Canada, 1992). For an
attack on the social charter proposal for its failure to empower judges to help the disad-
vantaged, see Jackman, 1992.
References
This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms
PETER H. RUSSELL 175
Biographical Note
This content downloaded from 142.66.3.42 on Fri, 15 Jul 2016 12:50:39 UTC
All use subject to http://about.jstor.org/terms