Governing with the Charter

Legislative and Judicial Activism and Framers' Intent

By (author) James B. Kelly
Categories: Politics and government, Society and Social Sciences
Series: Law and Society
Publisher: UBC Press
Paperback : 9780774812122, 336 pages, October 2006

Table of contents

Acknowledgments

Acronyms

Introduction

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

Conclusion

Bibliography

Index

Has parliamentary democracy been weakened by judicial responses to the Charter?

Description

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.

Awards

  • Short-listed, Donner Prize, Donner Foundation 2005

Reviews

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.

- David L. Weiden