Jim Kelly's excellent book provides a detailed and compelling analysis of how the Canadian Charter of Rights and Freedoms has become embedded in the processes of Canadian government. His principal targets are the conservative critics of the Charter and in particular their critique of judicial activism and judicial dominance of the legislative and policy processes under the Charter. Using a rich mesh of historical, normative and empirical analysis, he effectively counters much of the force of that critique. Kelly argues that the impact of judicial activism is overestimated and the scope for legislative activism correspondingly underestimated. While the bureaucratic arrangements for Charter scrutiny in government and cabinet are well developed and functioning well, Kelly demonstrates the woefully underdeveloped parliamentary arrangements for Charter scrutiny, in particular in contrast with the arrangements in the United Kingdom under the Joint Committee on Human Rights.
Kelly's opening analysis of the origins and enactment of the Charter leads him to conclude that its framers—particularly those whose views, he argues, should be given particular weight (86–89)—intended that judges adopt a substantive, expansive and evolutionary approach to rights adjudication, distinct from the anemic review that had eventuated under the Bill of Rights (ch. 2 and 3).
Kelly makes the important point that the focus of Charter review has been on discretionary decision making by police and not the policy choices of the cabinet (35) undermining the conservative critique of judicial activism under the Charter (ch. 4) which has conflated the categories and assumed that they have equal normative significance.
When it comes to Charter review of legislation, Kelly makes three points illustrating his thesis that the courts have acted (or attempted to act) as co-ordinate actors with the political branches rather than to dominate the policy process: judicial invalidation has been much more common in relation to pre-Charter legislation and in relation to which the political branches have not directly considered the Charter issues; judicial analysis (especially the section 1 or Oakes analysis) is deferential and invalidation usually responds to fundamental flaws in the legislation rather than being an exercise of strong discretionary decision-making power by the courts; and the use of suspended declarations of invalidity as a primary remedy for Charter violations allows policy space for the political branches to recraft legislation to achieve the substantive policy objectives consistently with Charter rights (ch. 5).
One of the most significant empirical contributions of this book is Kelly's exhaustive account of the process of Charter review of legislative proposals by provincial and federal government (ch. 6 and 7 respectively). Here Kelly pursues his disagreement with the conservative critiques and elaborates what he sees as the important space for legislative activism, for the political branches to continue to drive the policy agenda within a strong rights culture. In particular, Kelly documents the key role of the Department of Justice (DOJ) in policy development and the legislative process. The DOJ and its legal services units embedded in line departments ensure that proposals are assessed for Charter compatibility throughout their development. Kelly demonstrates that legislation that has been through the formalized DOJ Charter review process has been less vulnerable to invalidation by the Supreme Court. He argues accordingly, in response to the conservative critics, “as most invalidated statutes were enacted before the Charter was entrenched or before the advent of Charter scrutiny in the legislative process, [the invalidation of old statutes] should not be a cause for concern and should not be used to demonstrate unbridled judicial power” (244–45). This is an important point that perhaps deserves a little more attention, in particular sitting alongside Kelly's analysis of the DOJ Charter review or Charter-proofing process.
The Charter review process is, in large part, directed at assessing the risk that the courts will find legislation to be inconsistent with Charter rights (234). The decisions of the Supreme Court inevitably form a central element of this analysis. The decline in the rate at which legislation has been struck down since the advent of Charter scrutiny may well be substantially explicable by the DOJ operating as a veto player, blocking (or reshaping) legislative proposals that would attract the unfavourable attentions of the courts if they were enacted. Kelly does not deny this (but see 213). He writes about “the ability of legislative activism to reach principled decisions that reconcile policy objectives with Charter commitments and make judicial activism less important” (240). He appears to assume that the policy space is not significantly constrained by Charter jurisprudence—that the Charter effectively constrains means but not ends.
Kelly's argument here would be strengthened by some treatment of the legislative proposals that do not emerge from the Charter review process at all or only emerge in substantially modified form because of DOJ objections based on Charter jurisprudence. In short, to what extent do the courts chill legislative initiative? To what extent is the rights culture in which the cabinet and government departments operate (39) a culture that is defined by the courts? To what extent are the Charter values that the machinery of government advance constrained by the courts (39)? One hopes that Kelly follows this excellent book with another exploring these questions.
