Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms

The introduction of the Canadian Charter of Rights and Freedoms in 1982 was accompanied by much fanfare and public debate, and the Charter remains the subject of controversy twenty-five years later. Contested Constitutionalism does not celebrate the Charter; rather it offers a critique by distinguished scholars of law and political science of its effect on democracy, judicial power, and the place of Quebec and Aboriginal peoples in Canada. Employing a diversity of methodological approaches, contributors explore three themes: governance and institutions, policy making and the courts, and citizenship and identity politics. The influence of the Charter has been profound, they conclude, but has it been beneficial? This thoughtful volume shifts the focus of debate from the Charter’s appropriateness to its impact – for better or worse – on political institutions, public policy, and conceptions of citizenship.

Table of Contents:
Introduction 1 Should We Cheer? Contested Constitutionalism and the Canadian Charter of Rights and Freedoms / James B. Kelly and Christopher P. Manfredi Part 1: Governance and Institutions 2 Legalise This: The Chartering of Canadian Politics / Andrew Petter 3 Rationalizing Judicial Power: The Mischief of Dialogue Theory / Grant Huscroft 4 Courting Controversy: Strategic Judicial Decision Making / Rainer Knopff, Dennis Baker, and Sylvia LeRoy 5 Legislative Activism and Parliamentary Bills of Rights: Institutional Lessons for Canada / James B. Kelly 6 Compromise and the Notwithstanding Clause: Why the Dominant Narrative Distorts Our Understanding / Janet L. Hiebert Part 2: Policy Making and the Courts 7 Judicializing Health Policy: Unexpected Lessons and an Inconvenient Truth / Christopher P. Manfredi and Antonia Maioni 8 National Security and the Charter / Kent Roach 9 Canadian Language Rights: Liberties, Claims, and the National Conversation / Graham Fraser 10 Explaining the Impact of Legal Mobilization and Judicial Decisions: Official Minority Language Education Rights outside Quebec / Troy Riddell 11 Reference re Same-Sex Marriage: Making Sense of the Government’s Litigation Strategy / Matthew Hennigar Part 3: Citizenship and Identity 12 Bills of Rights as Instruments of Nation Building in Multinational States: The Canadian Charter and Quebec Nationalism / Sujit Choudhry 13 The Internal Exile of Quebecers in the Canada of the Charter / Guy Laforest 14 The Road Not Taken: Aboriginal Rights after the Re-Imagining of the Canadian Constitutional Order / Kiera L. Ladner and Michael McCrossan Conclusion 15 The Charter and Canadian Democracy / Peter H. Russell Notes Index