James Kelly says the Charter has made Canada a leader

By Frank Kuin

Canada’s Charter of Rights and Freedoms has been a model for other Commonwealth nations in drawing up their own bills of rights, says James Kelly, a new professor in Concordia’s Political Science Department.

Kelly, an expert on the Charter of Rights and Freedoms who holds a PhD from McGill University, has researched several aspects of the document, which was added to the Canadian constitution in 1982 at the initiative of then Prime Minister Pierre Elliott Trudeau.

Specifically, he has studied the issue of “judicial activism,” rejecting charges that the Charter has allowed courts in Canada to usurp powers from Parliament. In addition, he’s examined ways in which the Charter compares with similar documents in Britain and New Zealand.

“In many ways, other members of the Commonwealth have been looking at the Canadian experience,” Kelly said. He is heading off to New Zealand, where he is currently conducting research on that country’s 14-year-old Bill of Rights.

“They are all looking at the Canadian Charter and adopting many provisions of it, but also trying to prevent some of the problems.”

Indeed, Canada has been a leader in reconciling a parliamentary system based on the British model, in which the legislature is supreme, with the ability of courts to strike down its decisions. The Charter’s “notwithstanding clause,” or section 33, was a measure to attain that balance.

“That was one of the innovations of the Canadian Charter,” Kelly said. “If Parliament felt judicial decisions were inappropriate, it could assert its supremacy by invoking section 33. And that clause has in many ways reappeared in other bills of rights in Westminster democracies.”

Trudeau did not like the notwithstanding clause, because he felt it undermined the Charter. In practice, however, it has only been used twice since 1982, speaking to Kelly’s other research interest – judicial activism.

“The limited use of the notwithstanding clause probably shows that no one actor monopolizes the interpretation of the Charter,” he said. “There is a lot of commonality between what judges and politicians and citizens say about rights.”

In fact, the debate about “judicial activism” — unelected judges striking down decisions by parliament — is a “false debate,” Kelly said. It has focused too much on the courts, neglecting an aspect political scientists should really be concerned with: the responses of political actors to the Charter.

While the courts have invalidated numerous statutes, most of these were enacted before the Charter, disproving the charge that judges are routinely challenging the contemporary will of parliamentarians.

More importantly from a political scientist’s perspective, however, the legislative branch of government has undertaken to pre-empt invalidation of its laws by carefully scrutinizing whether they comply with the Charter.

“I’m looking at what I call legislative activism, which is the way public policy has been changed in its development to incorporate Charter values in the policy process,” Kelly explained.

When the government develops legislation now, it takes great care to ensure that it can withstand judicial review. This “rights scrutiny” is done by the Department of Justice, meaning that its role in evaluating new laws has arguably eclipsed that of Parliament.

“What we have really seen is a shift of power away from Parliament, towards the cabinet,” Kelly said.

“So I’m not concerned about judicial supremacy, but more about what I see as growing executive supremacy within the parliamentary arena.”

Indeed, he said, “that’s probably the greatest limitation of the Charter,” one that other Commonwealth nations have sought to avoid.

Britain, for instance, adopted a human rights act in 1998, suspending it for two years to give parliamentarians a chance to review legislation from a rights perspective.

Despite this shortcoming, however, Kelly speaks lyrically about the effect the Charter has had on Canadian society. He said it has fundamentally changed the way Canadians see themselves.

“Before, what it meant to be Canadian was probably public health care,” he said. “Now, it’s the Charter of Rights and Freedoms. I think it’s this national unity function, the symbolism, that has been the greatest success of the Charter.”