Governing With the Charter Legislative And Judicial Activism And Framer's Intent

Since the introduction of the Canadian Charter of Rights and Freedoms in 1982, the question of judicial power and its relationship to parliamentary democracy has been an important issue in Canadian politics. Some critics, suspicious of the "activism" of "unelected and unaccountable" judges sponsoring an undemocratic rights revolution, view the increased power of the Supreme Court as a direct challenge to Parliament. But has parliamentary democracy been weakened by judicial responses to the Charter? Governing with the Charter challenges the position that our current democratic deficit is the result of the Supreme Court's judicial activism. First of all, through an analysis of the parliamentary hearings on the Charter that took place more than two decades ago, Kelly contends that an activist framers' intent surrounds the Charter and that the court has simply, and appropriately, responded to this new constitutional environment. Moreover, the Supreme Court is not the sole interpreter of this document: the cabinet and bureaucracy also play significant roles in governing with the Charter. Thus, while the principal institutional outcome of the Charter has been a marginalization of Parliament, this has not resulted through the political choices of the Supreme Court. Rather, Kelly argues, a deepening of prime-ministerial government and a general weakening of parliamentary democracy have occurred because of the prime minister's decision on how to govern with the Charter. A significant contribution to law and society studies, Governing with the Charter will be widely read by political scientists, legal scholars, parliamentarians, public servants, and students of the machinery of government.Kelly, James B. is the author of 'Governing With the Charter Legislative And Judicial Activism And Framer's Intent', published 2005 under ISBN 9780774812115 and ISBN 0774812117.