Misrepresenting the Supreme Court’s
Record? A Comment on Sujit Choudhry
and Claire E. Hunter, “Measuring Judicial
Activism on the Supreme Court of Canada”
Christopher P. Manfredi and James B. Kelly*
The authors respond to the argument made by
Professor Choudhry and Claire Hunter that there is no
empirical evidence to support claims that the Supreme
Court of Canada is engaged in judicial activism. They
first argue that the particular quantitative definition of
judicial activism used by Choudhry and Hunter focused
exclusively on the impact of rights-based judicial
review
primary
therefore
misunderstood
the purpose of counter-majoritarian
judicial review, which is to protect minorities from any
oppressive government action. In its place, following
Peter Russell and other political scientists, they define
judicial activism more broadly as the willingness of
courts to impose constitutional limits on government
action.
legislation,
and
on
The authors further contend that Choudhry and
Hunter misinterpreted the claims of political scientists
the Supreme Court. Each of the four
who study
hypotheses
tested by Choudhry and Hunter is an
untoward characterization of claims made
the
political science literature, and, even if one accepts
Choudhry and Hunter’s definition of judicial activism,
the available data does not support their argument. The
authors maintain that if legal scholars truly want to
engage with political scientists, they must begin to look
at the Supreme Court not only as a judicial institution,
but as a political one as well.
in
ne
supporte des
judiciaire A la Cour
lieu, que
Les auteurs rdpondent A l’argument du Professeur
Choudhry et de Claire Hunter selon lequel aucune
imputations
preuve empirique
d’activisme
supreme.
Ils
soutiennent, en premier
la d6finition
quantitative sp6cifique utilis6e par Choudhry et Hunter
s’est exclusivement consacrde A l’impact de la rdvision
judiciaire de l6gislation primaire sur la base des droits
de la personne. Ce faisant, Choudhry et Hunter ont mal
compris le but de la r6vision judiciaire anti-majoritaire,
qui est pr6cis6ment de prot6ger les minorit6s contre
toute forme de mesure gouvernementale oppressive.
Les auteurs sugg~rent A sa place une d6finition plus
inspir6e de Peter Russell et d’autres
inclusive,
politologues,
judiciaire
comme la volont6 du tribunal d’imposer des limites
constitutionnelles A Faction gouvemementale.
caract6risant
l’activisme
interpr6t6
Les auteurs soutiennent de plus que Choudhry et
Hunter ont mal
les affirmations des
politologues qui se sont consacrds A l’6tude de la Cour
supreme. Chacune des quatre hypotheses 6valu6es par
Choudhry et Hunter dans leur article est
leur avis une
caract~risation malheureuse des affumations faites dans
la litt6rature en science politique et, meme en acceptant
la d6finition de l’activisme judiciaire de Choudhry et
Hunter, les donndes disponibles ne supportent pas leur
argument. Les auteurs estiment pour leur part que si les
th6oriciens du droit d6sirent r6ellement ouvrir un
dialogue avec les politologues, ils doivent commencer
par consid6rer la Cour supreme non seulement comme
une
institution judiciaire, mais aussi comme une
institution politique.
* Christopher P Manfredi, Professor, Department of Political Science, McGill University; James B.
Kelly, Assistant Professor, Department of Political Science, Concordia University.
McGill Law Journal 2004
Revue de droit de McGill 2004
To be cited as: (2004) 49 McGill L.J. 741
Mode de rf~rence: (2004) 49 R.D. McGill 741
742
MCGLL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 49
Introduction
I. Defining and Measuring Judicial Activism
II. Testing the Hypotheses
A. Hypothesis 1: Judicial Activism Is High
B. Hypothesis 2: Judicial Activism Is Increasing over Time
C. Hypothesis 3: Section 1 Analysis as the Locus of Activism
D. Hypothesis 4: The Override Has Been Delegitimized
Conclusion
743
744
746
747
748
752
759
763
2004] MANFREDI & KELLY- MISREPRESENTING THE SUPREME COURT’S RECORD?
743
Introduction
In their article, “Measuring Judicial Activism on the Supreme Court of Canada”,
Sujit Choudhry and Claire E. Hunter present data that, in their words, “raise some
serious questions about the empirical assumptions made by critics of the Supreme
Court.”‘ Commenting on the article’s findings to The Globe and Mail, Choudhry went
even further: “I think there has been a systematic distortion of the court’s record under
the Charter … People may or may not like Charter adjudication, but they shouldn’t lie.
They shouldn’t misrepresent the court’s record.”2 According to both the interview and
the Choudhry and Hunter article, the principal agents of distortion are political
scientists. Discussing the public debate that followed remarks by Justice Marshall of
the Supreme Court of Newfoundland and Labrador (Court of Appeal) about “undue
incursions” by the Supreme Court of Canada into “the policy domain of the elected
branches of government,”3 Choudhry and Hunter expressed their regret that “the use
of empirical assumptions to bolster normative claims in the absence of quantitative
evidence is reflected not only in public debate, but also in the work of prominent
political scientists who write about the Supreme Court and the Charter.’4 The fact that
Justice Marshall did not cite any political scientist as the source of his remarks, or that
none of the participants in the public debate surrounding Justice Marshall’s remarks
referred to by Choudhry and Hunter is identifiably a political scientist, did not prevent
them from associating the alleged weaknesses of Justice Marshall’s analysis to a
specific group of scholars.
As two of the political scientists whose work is cited frequently in the Choudhry
and Hunter article,5 we feel compelled to respond. Although it is important to test
assertions about the Supreme Court’s impact on public policy under the Canadian
Charter of Rights and Freedoms6 empirically, their article
in two
fundamental respects. First, their particular quantitative definition of judicial activism,
which focuses exclusively on the impact of rights-based judicial review on primary
legislation, misunderstands the purpose of counter-majoritarian judicial review, which
is to protect minorities from any oppressive government action. This is precisely why
the Charter applies to “all matters” within the authority of Parliament and the
is flawed
1 Sujit Choudhry & Claire E. Hunter, “Measuring Judicial Activism on the Supreme Court of
Canada: A Comment on Newfoundland (Treasury Board) v. NAPE” (2003) 48 McGill L.J. 525 at 556-
57.
2 Kirk Makin, “Critics of Supreme Court Off Base, Study Says” The Globe and Mail (2 February
3 Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees (2002), 220
Nfld. & P.E.I.R. 1 at 98, 221 D.L.R. (4th) 513 (cited in Choudhry & Hunter, supra note 1 at 527).
4 Choudhry & Hunter, supra note 1 at 530.
‘ Ibid. at 530, 532, 535, 536, 538, 539, 541, 545, 546, 547, 548, 549, 552, 555. We leave it to others
to decide whether we should be considered “prominent” (at 530).
6 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
2004) A4.
[Charter].
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[Vol. 49
provincial and territorial legislatures.7 In our view, there is an alternative, equally
quantitative definition of judicial activism that better captures the nature and purpose
of constitutionally based judicial review.
The article’s second flaw is much more serious. None of the four hypotheses that
Choudhry and Hunter purport to test empirically coincides with any claim made in the
scholarship they cite in their article. No political scientist has ever argued that
governments do not win a majority of Charter cases; nor has any political scientist
ever argued that “government loss” (or “claimant win”) rates have systematically
increased over time. No political scientist has argued that “section 1 is the central
its counter-majoritarian power”;8 instead,
vehicle whereby the Court exercises
scholarship has focused on section 1 as the site for the exercise of discretionary
judicial power on issues that are outside the normal range of judicial expertise. They
also present political scientists as being exclusively critics of the Supreme Court,
when, in fact, there is significant disagreement within the scholarly community as to
the precise impact of the Supreme Court’s interpretation of the Charter.9 Finally, they
misstate Manfredi’s argument about the effect of the non-use of section 33, which is
an argument about levels of remedial activism rather than judicial activism more
generally. In essence, Choudhry and Hunter employ superficially sophisticated
techniques to construct a largely straw figure argument. In this sense, they fail in their
ultimate purpose of engaging with the political science literature on the courts and
constitutional adjudication.
I. Defining and Measuring Judicial Activism
Repeating a point made by Choudhry in his review of Manfredi’s Judicial Power
and the Charter, the Choudhry and Hunter article depicts judicial activism as “a
notoriously slippery term, which variously means the departure from well-established
precedent, adjudication based on judicial preferences, or the judicial reallocation of
institutional roles between the courts and other branches of government, depending
7 Ibid., s. 32 [emphasis added].
8 Choudhry & Hunter, supra note 1 at 531.
9 See, for example, the disagreement between Manfredi and Kelly on the question of judicial
power: Christopher P. Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal
Constitutionalism, 2d ed. (Don Mills, Ont.: Oxford University Press, 2001) [Manfredi, Judicial
Power and the Charter], and James B. Kelly, “Governing with the Charter of Rights and Freedoms”
(2003) 21 Sup. Ct. L. Rev. (2d) 299 [Kelly, “Governing”]. See also Miriam Smith, “Ghosts of the
Judicial Committee of the Privy Council: Group Politics and Charter Litigation in Canadian Political
Science” (2002) 35 Can. J. Pol. Sci. 3; Rainer Knopff & F L. Morton, “Ghosts and Straw Men: A
Comment on Miriam Smith’s ‘Ghosts of the Judicial Committee of the Privy Council’
(2002) 35
Can. J. Pol. Sci. 31; Miriam Smith, “Partisanship as Political Science: A Reply to Rainer Knopff and
F L. Morton” (2002) 35 Can. J. Pol. Sci. 43.
10 See Choudhry & Hunter, supra note 1 at 530.
2004] MANFREDI & KELLY- MISREPRESENTING THE SUPREME COURT’S RECORD?
745
on who is employing it and in what context.”” In order to overcome definitional
ambiguities, they adopt a “quantitative definition of judicial activism” that “focusses
on outcomes (i.e., whether a government wins or loses) and posits that courts are
more activist the more frequently they find that democratically elected institutions
have acted unconstitutionally.”‘ 2 Although the focus on outcomes is consistent with
the approach taken by Kelly and Morton et al., 3 Choudhry and Hunter define
activism exclusively in terms of Charter-based challenges to “majoritarian” acts (i.e.,
federal and provincial legislation and municipal bylaws). 4 They exclude non-Charter
cases because of their perception that disputes about the level of activism under
section 1 of the Charter-which does not extend
to non-Charter rights and
freedoms-are an important part of the more general activism debate. They also
exclude Charter challenges to common law rules, secondary legislation, and official
action because, by not interfering directly with
the power of democratically
accountable institutions, these challenges are ostensibly less problematic in normative
terms.
We agree with Choudhry and Hunter that a non-ambiguous definition that lends
itself to quantification, however simplistically, is preferable to one that requires
qualitative judgments between “due” and “undue” judicial incursions into public
policy. Their definition, however, depends on just such a qualitative judgment, with
“non-counter-majoritarian” and “counter-majoritarian” simply substituting for “due”
and “undue”. Moreover, Choudhry and Hunter’s definition fails even by its own
counter-majoritarian criterion. The Aboriginal and non-Charter language rights cases
they exclude are obviously counter-majoritarian
in the sense that they seek to
vindicate the rights of often very disadvantaged minorities. Similarly, those affected
by the common law rules, secondary legislation, and official action that become the
objects of Charter challenges, especially in the criminal justice system, are, as Kent
Roach has argued, also often among society’s most disadvantaged groups. 5
Consequently, following Peter Russell, political scientists have accepted a more
inclusive, and ultimately more neutral, definition of judicial activism as the
11 Ibid. at 531 (paraphrasing Sujit Choudhry, Book Review of Judicial Power and the Charter:
Canada and the Paradox of Liberal Constitutionalism by Christopher P, Manfredi (2003) 1 Int. J. of
Const. L. 379 at 386).
12 Ibid. at 532 [emphasis in original].
13 F L. Morton, Peter H. Russell & Michael J. Withey, “The Supreme Court’s First One Hundred
Charter of Rights Decisions: A Statistical Analysis” (1992) 30 Osgoode Hall LJ. 1; FL. Morton,
Peter H. Russell & Troy Riddell, “The Canadian Charter of Rights and Freedoms: A Descriptive
Analysis of the First Decade, 1982-1992” (1995) 5 N.J.C.L. 1; James B. Kelly, “The Charter of
Rights and Freedoms and the Rebalancing of Liberal Constitutionalism in Canada, 1982-1997”
(1999) 37 Osgoode Hall L.J. 625 [Kelly, “Rebalancing”].
14 Choudhry & Hunter, supra note 1 at 539-41.
‘5 Kent Roach, Due Process and Wctims’Rights (Toronto: University of Toronto Press, 1999) at 9-10.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 49
limits on government action.’ 6 A
willingness of courts to impose constitutional
completely restrained court would never do this; a completely activist one would do it
at every opportunity. 7 In the real world, of course, no court’s behaviour reflects either
of these extremes, and every court exercises a mixture of restraint and activism.
It should be uncontroversial that, in absolute terms, the Supreme Court has
imposed more constitutional limitations on government action in the post-Charter era
than during any period of its history since becoming Canada’s final court of appeal in
1949. From 1982 to 2002, the Court decided 436 rights-based cases (20.8 per year);
in 152 of those cases, it upheld the rights claim; and in seventy-five instances it
nullified a federal or provincial statute (a rate of 3.6 nullifications per year). By
contrast, from 1950 to 1984 it decided 177 division of powers cases (5.1 per year),
and it nullified sixty-five federal and provincial statutes (1.9 per year).” More recent
federalism data are consistent with this low annual volume of both cases and
nullifications: from 2000 to 2002 the Court decided eleven division of powers cases
(less than four per year) and nullified only one statute on federalism grounds. 9 The
absolute volume of the Court’s post-1982 activism is not surprising: it is an inevitable
and intentional product of constitutional design. There is no doubt that subsection
52(1) of the Constitution Act, 1982 and subsection 24(1) of the Charter explicitly
establish a political regime of constitutional supremacy in which limits on political
power are enforced through constitutional judicial review of statutes, regulations, and
official conduct. Indeed, to criticize judicial activism per se would be to deny that
legislatures and executives can sometimes exceed their constitutional authority.
II. Testing the Hypotheses
The real disputes in the literature are about whether the Supreme Court has been
too active and/or exercised its activism outside the parameters of its constitutional
authority. Each of the four hypotheses examined in the Choudhry and Hunter article
addresses some aspect of the first issue. Using as their measure of activism the
proportion of counter-majoritarian Charter cases that governments win each year (the
“government win rate”), they examine whether judicial activism is high (A); whether
it is increasing over time (B); whether the Court is particularly activist under section 1
16 See Peter H. Russell, Rainer Knopff & R L. Morton, eds., Federalism and the Charter: Leading
Constitutional Decisions (Ottawa: Carleton University Press, 1989) at 19 (defining activism as
“judicial vigour in enforcing constitutional limitations on the other branches of government and a
readiness to veto the policies of those branches of government on constitutional grounds”).
17 Choudhry and Hunter recognize this point. See Choudhry & Hunter, supra note 1 at 532.
18 Patrick Monahan, Politics and the Constitution: The Charter, Federalism and the Supreme Court
of Canada (Toronto: Carswell, 1987) at 151-52 [Monahan, Politics and the Constitution].
19 Patrick J. Monahan & Nadine Blum, “Constitutional Cases 2002: An Overview” (2003) 20 Sup.
Ct. L. Rev. (2d) 1; Patrick J. Monahan, “Constitutional Cases 2001: An Overview” (2002) 16 Sup. Ct.
L. Rev. (2d) 3; Patrick J. Monahan, “Constitutional Cases 2000: An Overview” (2001) 14 Sup. Ct. L.
Rev. (2d) 1.
2004] MANFREDI & KELLY- MISREPRESENTING THE SUPREME COURT’S RECORD?
747
(C); and whether the legislative override (section 33) has become a less effective
check on judicial activism (D).”0 We turn now to each of these hypotheses.
A. Hypothesis 1: Judicial Activism Is High
According to Choudhry and Hunter, if this hypothesis is correct, one should
observe a low government win rate in counter-majoritarian Charter cases. Testing the
hypothesis, they found that governments, in fact, won 62.4 per cent of all such cases
from 1984 to 2002. Putting the point somewhat differently, they argue that the
“government loss rate of 37.6 percent provides an absolute ceiling for the number of
cases that might be characterized as activist by critics of the Court.”‘2’ ‘This number
[37.6 per cent]”, they suggest later in the article, “does not seem as high as some
would lead us to believe. ’22 But who has ever led anyone to believe that the activism
level is higher than what Choudhry and Hunter found? No political scientist of whom
we are aware, and certainly none of the authors cited by Choudhry and Hunter, has
ever indicated a government loss rate of more than 34 per cent. 3 In our own analysis
we included sixty-four statutes invalidated between 1982 and 2003 and focused solely
on the Canadian Charter of Rights and Freedoms. If we exclude judicial decisions
involving statutes reviewed in 2003 to make our results comparable, the difference
between our government win rate (63.9 per cent) and that of Choudhry and Hunter
(62.4 per cent) is 1.5 percentage points. It is indeed the case, as they suspect, that
“[t]hese differences [are] attributable to differences between [their] methodology and
that of these previous studies.”24 Nevertheless, it is especially noteworthy that, despite
using a more restrictive definition, a study that purports to question the very reality of
judicial activism25 finds even more of it.
Of course, determining whether 34 or 36.1 or 37.6 per cent should be considered
high is a relative judgment for which we need some baseline comparison. Yet
domestic comparisons are problematic because
the post-1982 constitutional
environment differs so radically from the pre-1982 environment. One comparison
might be with activism under the 1960 Bill of Rights.26 On this comparison, post-1982
activism is very high indeed. From 1960 to 1982, the Court decided thirty-four Bill of
Rights cases (about 1.5 per year); upheld the claim on only five occasions (14.7 per
cent); and nullified a single statute. Moreover, the Court developed a particular
20 Choudhry & Hunter, supra note 1 at 543.
21 Ibid. at 545.
22 Ibid. at 556.
23 See Kelly, “Rebalancing”, supra note 13 at 641.
24 Choudhry & Hunter, supra note 1 at 546.
25 Ibid. at 557.
26 Canadian Bill of Rights, S.C. 1960, c. 44.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 49
reputation for restraint in the area of equality rights.27 However, we cannot know
whether the justices of the 1960s and 1970s would have been more activist had the
Bill of Rights been constitutionally entrenched.
The most important question about judicial activism is not how high it is, but how
judicial application of the Charter has affected the substance of public policy and the
behaviour of governmental and non-governmental actors. Although observers may
reasonably disagree about whether post-Charter judicial activism has made public
policy better, it is difficult to deny that there have been profound changes in several
policy areas. From decriminalization of abortion to the elements of a fair trial to
minority language education rights to same-sex marriage, judicial application of the
Charter, and the culture of rights surrounding it, have changed at least the formal legal
framework of key public policies.28 Similarly, governments and social movements
have adjusted their behaviour to the realities of a post-Charter Canada.29
B. Hypothesis 2: Judicial Activism Is Increasing Over Time
Not surprisingly, the Choudhry and Hunter data demonstrate that activism levels
vary significantly from year to year, with no obvious systematic trend in one direction
or another. However, it is again unclear that political scientists have made different
empirical claims. Indeed, Kelly argued that judicial activism actually declined from
1993 to 1997.30 Nevertheless, even the Choudhry and Hunter data are open to
alternative interpretations on this point. For example, one could note that their data
indicate that the annual government win rate fell below sixty per cent on only five
occasions, but that three of those occasions (1997, 2001, 2002) occurred during the
last six years of their analysis. In fact, in 1997 the government had its worst year since
27 See W.S. Tarnopolsky, “The Supreme Court and the Canadian Bill of Rights” (1975) 53 Can. Bar
Rev. 648.
28 We know far less about the practical impact of these changes. For some attempts to examine
impact, see W.A. Bogart, Consequences: The Impact of Law and Its Complexity (Toronto: University
of Toronto Press, 2002); D. Schneiderman & K. Sutherland, eds., Charting the Consequences: The
Impact of Charter Rights on Canadian Law and Politics (Toronto: University of Toronto Press,
1997); and W.A. Bogart, Courts and Country: The Limits of Litigation and the Social and Political
Life of Canada (Toronto: Oxford University Press, 1994).
29 See e.g. James B. Kelly, “Bureaucratic Activism and the Charter of Rights and Freedoms: The
Department of Justice and Its Entry into the Centre of Government” (1999) 42 Can. Pub. Admin. 476
[Kelly, “Bureaucratic Activism”]; Janet L. Hiebert, Charter Conflicts: What is Parliament’s Role
(Montreal & Kingston: McGill-Queen’s University Press, 2002) [Hiebert, Charter Conflicts]; Sherene
Razack, Canadian Feminism and the Law: The Women’s Legal Education and Action Fund and the
Pursuit of Equality (Toronto: Second Story Press, 1991); Miriam Smith, Lesbian and Gay Rights in
Canada: Social Movements and Equality Seeking, 1971-1995 (Toronto: University of Toronto Press,
1999); Ian Brodie, Friends of the Court: The Privileging of Interest Group Litigants in Canada
(Albany: State University of New York Press, 2002); Christopher P. Manfredi, Feminist Activism in
the Supreme Court: Legal Mobilization and the Women’s Legal Education and Action Fund
(Vancouver: University of British Columbia Press, 2004).
30 Kelly, “Rebalancing”, supra note 13 at 641.
2004] MANFREDI & KELLY- MISREPRESENTING THE SUPREME COURT’S RECORD?
749
1985. One could also note the two consecutive years of declining government win
rates in 2001 and 2002.
The picture becomes even less clear if one breaks the data down by chief justice
or tracks cumulative (rather than annual) government win rates.
Table 1
Government Win Rates, By Chief Justice
Chief Justice
Wins
Losses
Dickson (1984-90)
Lamer (1991-99)
McLachlin (2000-02)
39
70
17
20
40
10
Total
59
110
27
Win Rate
66.6
63.6
63.0
As Table 1 indicates, the Court has become progressively more activist with each
successive post-Charter chief justice. The government win rate declined from 66.6 per
cent during the Dickson court, to 63.6 per cent under Chief Justice Lamer and then to
63.0 per cent during the years of the McLachlin court covered by the Choudhry and
Hunter data.
As Table 2 and Figure 1 indicate, one also gets a different picture by tracking
cumulative win rates.
Table 2
Cumulative Win Rates
Year
1984
1985
1986
1987
1988
1989
1990
1991
1992
Cumulative Wins Cumulative Losses
Cumulative Total
Cumulative Win Rate
1
2
4
7
19
24
39
48
59
2
5
6
8
14
16
20
26
31
3
7
10
15
33
40
59
74
90
33.3
28.6
40.0
46.7
57.6
64.0
66.1
64.9
65.6
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1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
75
82
93
96
100
103
109
117
121
126
38
40
44
45
55
57
60
61
64
70
113
122
137
141
155
160
169
178
185
196
66.4
67.2
67.9
68.1
64.5
64.4
64.5
65.7
65.4
64.3
From 1985 to 1990, governments steadily increased their cumulative win rate,
suggesting a major decrease in activism during that period. In 1991, the cumulative
win rate dropped, indicating that the Court was particularly active during that year.
From 1992 to 1996 the Court became less activist and the cumulative win rate again
began to climb from 65.6 to 68.1 per cent. There was another particularly activist year
in 1997, which reduced the cumulative win rate to 64.5 per cent. Finally, after three
years of relative stability, activism increased and the cumulative win rate decreased in
2001 and 2002. In fact, the Court’s history with respect to Charter activism might be
divided into two phases: a steady decrease from 1985 to 1996, followed by an
increase from 1997 to 2002 that saw the cumulative government win rate drop from a
high of 68.1 per cent in 1996 to a pre-1990 level just above 64 per cent. It is not
radically inconsistent with the Choudhry and Hunter data, therefore, to suggest that
the Court became more activist from the mid-1990s until 2002.
Nevertheless,
the data do indicate
that judicial activism has reached an
equilibrium point. As Choudhry and Hunter suggest, one plausible explanation for
this phenomenon is “government learning”, which they take to mean that Parliament
and provincial legislatures internalize the Supreme Court’s approach to the Charter in
the legislative process: “Over time, governments that are strategically minded learn to
conform both their legislation and their arguments in Charter cases to the Court’s
jurisprudence.”‘” They contend, however, that testing this hypothesis “would require
data that assesses the behaviour and motivation of various actors, presumably in the
form of
the
methodological inquiries that such a research project would need to consider, such as
the influence that potential Charter challenges have on the framing of legislation by
their credit, Choudhry and Hunter outline
interviews.”32 To
31 Choudhry & Hunter, supra note 1 at 547.
32 Ibid. at 548.
2004] MANFREDI & KELLY- MISREPRESENTING THE SUPREME COURT’S RECORD?
751
politicians and bureaucrats, as well as on the litigation strategies of government
lawyers that defend challenged statutes before the courts.
Fortunately, some political scientists have already begun to conduct precisely the
type of research called for by Choudhry and Hunter.33 Two points from this research
are particularly germane to the government learning thesis. First, rather than simply
focus on annual activism rates, it is important to consider the year of enactment of
nullified statutes. Indeed, government loss and win rates may be irrelevant empirical
indicators if the Supreme Court is generally activist against statutes enacted in the pre-
Charter policy environment or shortly after 1982 (i.e., before reforms to the policy
process). As Barry Strayer observed after serving as assistant deputy minister of justice
during the drafting of the Charter and then as a member of the Federal Court, “some of
the substantive laws struck down by the courts, though their demise has caused more
anguish in certain quarters, were nevertheless living on borrowed time.”34
in institutional reform to ensure that
This is an important empirical consideration, since many of the statutes used to
evaluate the level of judicial activism were enacted before 1982 and before the
parliamentary arena engaged
legislative
objectives clearly advanced Charter values. The lack of a discernible pattern in
government win rates, therefore, is likely explained by including two types of statutes
in the analysis: those enacted before the Charter’s introduction, which remain
unaffected by government learning, and those enacted afterwards, which have the
benefit of what Kelly referred to as “bureaucratic activism” because of the extensive
vetting that potential legislation is subjected to before being passed into law.
that a significant number that account for annual variations
An examination of the statutes invalidated on Charter grounds between 1982 and
2003 reveals
in
government win rates are pre-Charter legislation: statutes, therefore, that were drafted
in a less demanding policy context where parliamentary supremacy, and not
constitutional supremacy, was the dominant paradigm structuring the design and
implementation of legislation. Breaking down the data based on the year of enactment
or last amendment reveals that thirty-one per cent (twenty of sixty-four) of the
instances of judicial activism involve statutes that were enacted or last amended
before the introduction of the Charter or before the internal policy process within
government was reformed to explicitly link policy objectives to Charter commitments
made by democratic actors. Testing the government learning thesis, therefore, requires
that this subset of cases be excluded. The fluctuations in government win rates,
therefore, are not necessarily indicative of judicial activism, but are idiosyncratic by-
products of the particular statutes reviewed in any one year.
33 For example, Kelly has conducted this type of research and published his findings in 1999 and
2003: Kelly, “Bureaucratic Activism”, supra note 29; and Kelly, “Governing”, supra note 9.
34 B.L. Strayer, “Life under the Canadian Charter: Adjusting the Balance Between Legislatures and
Courts” (1988) P.L. 347 at 359.
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A significant number of post-1982 statutes were proclaimed into law shortly after
the Charter’s entrenchment and well before the federal and provincial governments
took steps to review legislation from a rights perspective.35 Based on the ‘research
conducted by Monahan and Dawson, and bolstered by Kelly’s research, the benefit of
bureaucratic activism was only realized in the period after 1991, which coincides with
the institutional reforms at the federal level when “the Clerk of the Privy Council, at
the request of the Department of Justice, wrote to all deputy ministers outlining steps
to ensure that Charter issues were identified and addressed before new policy
proposals were considered by Cabinet.”36 Using
institutionalization of
bureaucratic activism and rights vetting as the benchmark demonstrates that fifty per
cent (thirty-two of sixty-four) of invalidated statutes were enacted or last amended in
the 1983 to 1990 period and a significant number in 1985 (twenty-one statutes):
periods, incidentally, well before the benefits of Charter vetting could be realized,
leaving only eleven statutes to test Choudhry and Hunter’s government learning thesis.
the
The evidence for government learning could thus only be found in the relatively
small number of post-1991 vetted statutes that are reviewed by the Supreme Court as
potentially inconsistent with the Charter. The broader point, however, is that activism
exists on more than one level, and includes judicial review, statutory vetting, and legal
mobilization by non-governmental actors. To fully understand
the Charter’s
implications, therefore, requires broadening our conceptual apparatus to encompass a
phenomenon that might be termed “Charter activism” broadly understood. Judicial
activism, in other words, is only a small, though highly visible, part of the picture.
C. Hypothesis 3: Section 1 Analysis as the Locus of Activism
According to Choudhry and Hunter, the basis for this hypothesis is the difference
observed between overall government win rates and win rates at the section 1 stage of
Charter analysis. Their own data, for example, indicate that government win rates
were about twice as high at the rights violation stage than at the section 1 stage.37 This
finding, they note, is consistent with Kelly’s finding that, between 1984 and 1997,
there was a twenty-seven percentage point gap between overall government win rates
(sixty-six per cent) and section 1 win rates (thirty-nine per cent). They argue,
however, that the hypothesis is misguided because “government success in section 1
is, at the very least, unrelated to its general success in contesting Charter challenges,
and as a result, a claim of Court activism in its use of section 1 does not go very far to
establishing a general claim of judicial activism.”38 Instead, they contend that lower
government win rates at this stage should be expected precisely because the
35 See generally Patrick J. Monahan & Marie Finkelstein, “The Charter of Rights and Public Policy
in Canada” (1992) 30 Osgoode Hall L.J. 501; Mary Dawson, “The Impact of the Charter on the
Public Policy Process and the Department of Justice” (1992) 30 Osgoode Hall L.J. 595.
36 Dawson, ibid. at 597.
3 7 Choudhry & Hunter, supra note 1 at 549.
” Ibid. at 552.
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government has already lost once, at the rights violation stage, before the case even
proceeds to a section 1 analysis.
In order to test this alternative hypothesis, Choudhry and Hunter distinguish
between rights with strong internal limits (e.g., section 7)-where successful claims at
the rights violation stage are more difficult to achieve-and those with no internal
limits (e.g., subsection 2(b))-where the initial rights violation is relatively easy to
demonstrate. In their view, violations of internally limited rights should be more
difficult to justify under section 1 than rights with no internal limits. Not surprisingly,
they find a 44.4 per cent government win rate under section 1 in subsection 2(b)
cases, compared to only 6.3 per cent in section 7 cases and 20 per cent in section 15 (a
partially limited right) cases.39 Nothing in these findings, however, negates the
observation that the Court is more activist under section 1 (i.e., government win rates
are lower, to use the Choudhry and Hunter definition) than it is generally. The data
may explain why activism levels are higher under section 1, the reason being that
more egregious (and thus more difficult to justify) rights violations reach this stage.
Again, reasonable people can disagree about whether section 1 activism is higher than
it should be, but no one can question whether it is higher in relative terms.
The more problematic aspect of the Choudhry and Hunter analysis of section 1 is
its assumption that judicial review is a neutral, technical act where the outcome of a
case is determined by the characteristic of a Charter right and not the discretionary
choices of the judiciary. There are important reasons why the government win rate at
subsection 2(b) is one of the lowest and is paradoxically the highest at section 1. The
Supreme Court has applied a large and liberal approach to fundamental freedoms and
has determined that corporate interests are included within the term “everyone” and
are therefore protected by the fundamental freedoms.4″ Moreover, the Supreme Court
created distinctions among different kinds of expression: it is extremely difficult to
justify a limitation on expression that is central to the functioning of a democratic
system such as political expression, whereas limitations on commercial expression
and other expression outside the core require less justification.4
While the form of protected expression does not have any bearing on the
government win rate at the subsection 2(b) analysis, as most expression is protected
unless it has a violent content, the hierarchy of protected expression created by the
Supreme Court clearly affects the government win rate at subsection 1; judicial
discretion and not the neutral application of Charter rights, thus has a direct bearing
” Ibid. at 550.
40 See Ford v. Quebec (A.G), [1988] 2 S.C.R. 712, 54 D.L.R. (4th) 577; Irwin Toy Ltd. v. Quebec
(A.G), [1989] 1 S.C.R. 927, 58 D.L.R. (4th) 577.
41 Hiebert, Charter Conflicts, supra note 29 at 81. See also R. v. Keegstra, [1990] S.C.R. 697 at
759-767, 61 C.C.C. (3d) 1, [1991] 2 W.W.R. 1 [Keegstra cited to S.C.R.]; RJR-MacDonald Inc. v.
Canada (A.G), [1995] 3 S.C.R. 199 at 279-82, 127 D.L.R. (4th) 1 [RJR-MacDonald cited to S.C.R.].
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on government win rates. In Thompson Newspapers Company v. Canada (A.G) 42 the
Supreme Court found that the Canada Elections Act and the publication ban on
polling three days before an election violated freedom of expression, and in R. v.
Keegstra43 the Criminal Code restriction on hate propaganda also violated subsection
2(b). However, the determinations of constitutionality were very different, as the
Supreme Court found the limitation reasonable in Keegstra but unreasonable in
Thompson Newspapers. The different outcome occurred because the Court required a
higher standard of justification to satisfy section 1 in Thompson Newspapers because
it involved a core form of expression,’ whereas the Criminal Code restriction in
Keegstra was “directed at expression distant from the core of free expression values,”
and therefore required a drastically lower standard to justify the infringement.45
These different outcomes reveal a fundamental
limitation in the attempt by
Choudhry and Hunter to redirect the analysis away from section 1 and the
discretionary decisions of the Supreme Court and to focus on the characteristics of the
right. Without making distinctions between the types of expression in their analysis
and failing to compare government win rates based on core or peripheral forms of
expression, they have treated subsection 2(b) as a uniform Charter right when this is
not the case. Indeed, if the analysis focused principally on political expression, to
which the Supreme Court has applied a high standard of justification for section 1
analysis, we hypothesize that the government win rate would be as low, or even
lower, than Choudhry and Hunter found for section 7. The pattern of government win
rates as a reflection of internal restrictions within a right, therefore, does not hold
because of
the determination of
constitutionality. In other words, they may also be guilty of designing a quantitative
analysis around a deficient doctrinal understanding of Charter adjudication.46
the central
importance of section 1
in
Beyond the problematic nature of the empirical analysis used to test Hypothesis 3,
Choudhry and Hunter have erred in attributing this claim to political scientists.
Although Kelly argued that, “because of the highly discretionary nature of sections 1
and 24(2), their use provides an accurate measure of judicial activism under the
Charter,’ ‘ 47 he did not claim that section 1 represents the locus of activism. Instead, he
suggested that more important forms of activism preceded judicial review involving
the Charter. Bureaucratic activism, as Kelly contended, was far more significant than
judicial activism because of the emerging rights culture within government that
allowed Parliament to remain the centre of government.48
42 [1998] 1 S.C.R. 877, 159 D.L.R. (4th) 385 [Thompson Newspapers cited to S.C.R.].
43 Keegstra, supra note 41.
44 Thompson Newspapers, supra note 42 at 945.
45 Keegstra, supra note 41 at 787.
46 Compare Choudhry & Hunter, supra note 1 at 552.
47 Kelly, “Rebalancing”, supra note 13 at 662.
48 Kelly, “Bureaucratic Activism”, supra note 29 at 506-507.
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Discretion and institutional capacity, rather than judicial activism per se, are the
real issues under section 1. Although the Oakes49 test provides the basic framework
for section 1 analysis, the Court has held that this framework’s application should
vary according to both the type and intended beneficiaries of a public policy. In 1989,
the Court drew an explicit distinction between policies where legislatures are
mediating the claims of competing groups and those where government “is best
characterized as the singular antagonist of the individual.”5 For policies of the first
type, Chief Justice Dickson suggested, the Court should be circumspect in assessing
legislative objectives and means. By contrast, the second type of policy frees the
Court to exercise its review function more aggressively.5 The Court, however, has
been inconsistent in following the implications of its apparently general rule of
judicial deference in socio-economic policy cases. For example, in RJR-MacDonald v.
Canada (A.G), where a majority nullified restrictions on tobacco advertising, the
Court stated that
to carry judicial deference to the point of accepting Parliament’s view simply
on the basis that the problem is serious and the solution difficult, would be to
diminish the role of the courts in the constitutional process and to weaken the
structure of rights upon which our constitution and our nation is founded.52
In sum, the Court is unwilling to follow even self-imposed limits on its judicial review
function, and its control over the interpretation and application of section 1 allows it
to expand and contract those limits to suit its immediate policy objectives.
Moreover, the type of activism exercised under section 1 generally involves
judicial micro-management of public policy on the basis of poor evidence. Take, for
example, Libman v. Quebec (A. G).53 At issue was a set of provisions under the
Quebec Referendum Act which effectively placed a six hundred dollar ceiling on
expenditures by groups unaffiliated with the two “national” committees established to
conduct referendum campaigns. The Quebec law exemplified a long-standing policy
of controlling the role of money
in the electoral process by combining public
subsidies to candidates and parties with strict regulation of independent expenditures.
By 1997, however, successive Charter challenges had weakened the second pillar of
this policy. 4 After two elections (1984, 1988) in which independent expenditures
went unregulated, the federal government imposed a one thousand dollar spending
limit on independent expenditures for the 1993 federal election. In 1996, the Alberta
Court of Appeal declared that this ceiling violated freedom of expression, freedom of
49 R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200.
50 Irwin Toy Ltd. v. Quebec (A.G), [1989] 1 S.C.R. 927 at 994, 58 D.L.R. (4th) 577 [Irwin Toy cited
to S.C.R.].
1 Ibid. at 993-94.
52 RJR-MacDonald, supra note 41 at 332-33.
” [1997] 3 S.C.R. 569, 151 D.L.R. (4th) 385.
54 See Janet L. Hiebert, “Money and Elections: Can Citizens Participate on Fair Terms Amidst
Unrestricted Spending?” (1998) 31 Can. J. Pol. Sci. 91 at 92-98.
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association, and the right to vote.55 In Libman, the Court agreed that limits on
independent expenditures are necessary to ensure equality and fairness in the electoral
process, but nevertheless found Quebec’s specific expenditure ceiling on non-
affiliated groups too restrictive of their freedom of expression. By disapproving,
however, of the Alberta court’s decision while praising the royal commission that
recommended the one thousand dollar ceiling in the federal law, the Court indicated
that Quebec could satisfy its constitutional obligations in this field by increasing the
independent expenditure limit to the federal level.
Libman, as much as any judgment, should raise questions about popular
perceptions of judicial decision-making under the Charter. At the core of these
perceptions is the belief that Charter-based review represents the ultimate triumph of
principle over policy. In actual fact, Charter review is more likely to involve more
prosaic questions, as it did in Libman. Once the Court accepted the proposition that
the Charter permits limits on independent expenditures, there was no legal or
constitutional principle against which
to evaluate the specific amount of the
expenditure ceiling. Indeed, if Libman announces any principle, it is that the amount
of money it takes to violate freedom of political expression is four hundred dollars.
Let us provide two further examples of the type of micro-policy questions
involved in Charter litigation, as well as the Court’s ability to manage them. One is
the Supreme Court’s 1990 Askov decision, which concerned unreasonable trial
delays.56 Comparing systemic delays in judicial districts in several provinces, Justice
Cory concluded that “a period of delay in a range of some six to eight months
between committal and trial might be deemed to be the outside limit of what is
reasonable.”” Although Justice Cory referred to evidence contained in an affidavit by
political scientist Carl Baar, he actually generated the six to eight month rule on the
basis of data concerning trial lengths in three Montreal area superior courts, which
were not included in the Baar study. The time period covered by the data also indicate
that Cory acquired them after oral argument in Askov 8 According to Baar himself,
the Court’s use of legislative facts suffered from two fatal flaws. 9 First, by relying on
evidence obtained through its own efforts, the Court avoided even the minimal critical
review provided by the adversary process. Second, by using these data to invent a
formula for determining unreasonable trial delays, the Court imposed a standard
without taking any measure of its potential impact. As Baar later argued, “the
Supreme Court went beyond the facts in Askov, and beyond the material presented in
both affidavits, to establish principles of law not necessary for the decision in the
55 Somerville v. Canada (A.G) (1996), 184A.R. 241,136 D.L.R. (4th) 205 (C.A.).
16 R. v. Askov, [1990] 2 S.C.R. 1199,74 D.L.R. (4th) 355 [Askov cited to S.C.R.].
5’ Ibid. at 1240.
58 Carl Baar, “Criminal Court Delay and the Charter: The Use and Misuse of Social Facts in
Judicial Policy Making” (1993) 72 Can. Bar Rev. 305 at 315.
‘9 Ibid. at 316-17.
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case, principles founded on incomplete and incorrect analysis of the material before
it.,
In unprecedented public comments on
As it turned out, Justice Cory’s clumsy foray into policy analysis was costly.
Although he had confidently predicted in Askov that stays of proceedings “will be
infrequently granted” as remedies for “unreasonable” delays,6 the reality was that
Askov led to dismissals, stays, or withdrawals of almost 52,000 criminal charges
involving more than 27,000 cases in Ontario alone between October 1990 and
November 1991.62
the unanticipated
consequences of Askov, Justice Cory expressed the Court’s “shock” at the “rigidity of
the interpretation” given to Askov by some lower courts.63 According to Cory, the
justices were unaware of how extensive the impact of the decision would be. 4 Indeed,
in R. v. Morin65 the Court found itself compelled to clarify that it had only intended to
articulate general guidelines in Askov, and it held that a fourteen-month delay was
reasonable
in Morin actually
compounded the legislative fact errors it had made in Askov. 6 Finally, in R. v.
Bennett 7 the Court apparently gave up altogether trying to understand the social
science of court delay.
in this case. Unfortunately, the Court’s decision
The second example involves a contrast between two important freedom of
expression cases, R. v. Butler68 and RJR-MacDonald. At issue in Butler was the
constitutionality of the anti-obscenity provisions of the Criminal Code. Granting wide
deference to Parliament’s interpretation of admittedly “inconclusive social science
evidence,” 69 Justice Sopinka upheld these provisions on the grounds that Parliament
had a rational basis for concluding that obscenity generates harmful antisocial
attitudes, particularly towards women. At issue in RJR-MacDonald were regulations
concerning tobacco advertising, promotion, and labelling contained in the Tobacco
Products Control Act. A majority of the Court found all three types of regulations
overly restrictive of expressive freedom, with three justices also refusing to find a
60 Ibid. at 314.
61Askov, supra note 56 at 1247.
62 Barr, supra note 58 at 314.
63 “Hampton Calls for Review of Ruling in Askov Case” The Globe and Mail (17 July 1991) A5.
61 Ibid.
65 R. v. Morin, [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1 [Morin]. Interestingly, Justice Cory was not a
member of the panel hearing this case.
66 Baar, supra note 58 at 321-30.
67 [1992] 2 S.C.R. 168, 9 O.R. (3d) 276, Sopinka J. (“We do not share the views of the appellant
with respect to the emphasis placed on statistics. Applying the factors in Morin, we agree with the
Court of Appeal that there was no unreasonable delay in this case” at 168-69). See Baar, ibid. at 331.
68 R. v. Butler, [1992] 1 S.C.R. 452, 89 D.L.R. (4th) 449 [Butler cited to S.C.R.].
69 Ibid. at 502.
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rational connection between an absolute ban on tobacco promotion and the legislative
objective of preventing the harmful effects of tobacco consumption.”0
The Court’s treatment of social science evidence in these two cases is particularly
instructive. In Butler, it took its reading of the evidence concerning the complex
relationship between pornography consumption and violent behaviour largely by
consulting secondary sources. In particular, the Court relied on the interpretation of
that evidence contained in government reports written to justify the very anti-
obscenity provisions under review. The absence of an independent critical evaluation
of the evidence contrasts with the greater use of primary sources and wider range of
opinion canvassed in RJR-MacDonald.7 Moreover, the Court in RJR-MacDonald
suddenly discovered the problematic nature of using legislative facts in constitutional
adjudication.72 As a result, the federal government faced vastly different evidentiary
burdens in each case, despite their common concern with matters of social policy.
Like any political actor, the Court generated evidence from the outcome rather than
vice versa. The best conclusion that one can draw from comparing Butler to RJR-
MacDonald is that the Court found pornography more socially undesirable than
smoking.
The general point of this admittedly selective survey of the Supreme Court’s
Charter judgments is that they raise fundamental questions about the traditional
sources of judicial authority, which are impartiality and expertise. Although the
justices are not partial in the sense of having personal material interests at stake in the
outcomes of specific cases, they do have policy preferences that they can advance
through their discretionary control over the rules of the judicial process and the
Charter’s meaning. Moreover, the issues on which most Charter decisions turn are
outside the traditional boundaries of judicial expertise and depend on subjective
assessments of often conflicting social science evidence. In the final analysis, there is
no compelling reason to grant authoritative status to the Court’s judgments in Charter
cases, especially when those judgments are based on a section 1 analysis.
70 RJR-MacDonald, supra note 41 at 339-42.
71 Among the sources cited by the Court were Simon Chapman & Bill Fitzgerald, “Brand
Preference and Advertising Recall in Adolescent Smokers: Some Implications for Health Promotion”
(1982) 72 Am. J. Pub. Health 491; Neil E. Collishaw, Walter Tostowaryk & Donald T. Wigle,
“Mortality Attributable to Tobacco Use in Canada” (1988) 79 Can. J. Pub. Health 166; Gerald J. Gorn
& Ren6e Florsheim, “The Effects of Commercials for Adult Products on Children” (1985) 11 J.
Consumer Research 962.
72 See John Hagan, “Can Social Science Save Us? The Problems and Prospects of Social Science
Evidence in Constitutional Litigation” in Robert J. Sharpe, ed., Charter Litigation (Toronto:
Butterworths, 1987) at 213-32. See also Brian G Morgan, “Proof of Facts in Charter Litigation” in
Robert J. Sharpe, ed., Charter Litigation (Toronto: Butterworths, 1987) at 159-86. See also Ann
Woolhandler, “Rethinking the Judicial Reception of Legislative Facts” (1988) 41 Vanderbilt L. Rev.
111.
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D. Hypothesis 4: The Override Has Been Delegitimized
In this section of their article, Choudhry and Hunter examine whether “the level
of judicial activism has risen in response to the delegitimization of the override” that
allegedly occurred after Quebec’s enactment of Bill 178 in 1988. 7
‘ They argue that
this “claim arises out of Manfredi’s analysis of the impact of the delegitimization of
the override on Charter adjudication.” 4 They describe Manfredi’s argument in the
following way:
[Manfredi’s] premise is that the Supreme Court acts strategically because it has
policy objectives, and its ability to secure those objectives depends on the
responses of legislatures to its judgments. Manfredi argues that prior to Bill
178, the threat of override led the Supreme Court to be cautious in its
judgments in order not to provoke a legislative reversal of its rulings. The
delegitimization of the override, accordingly, has altered the institutional
balance between courts and legislatures by removing this external restraint on
judicial review. The result, Manfredi argues, is that unconstrained by the threat
of the override in the post-Bill 178 period, courts have acted more aggressively,
and judicial activism has consequently increased.75
In order to test this claim empirically, Choudhry and Hunter examine government win
rates in overrideable rights cases from 1984 to 2002. Their finding is that there “is no
discernible trend with respect to this rate, and certainly no obvious drop-off in 1988 or
1989.1176 In fact, the government win rate was only slightly lower (sixty-five versus
sixty-eight per cent) from 1990 to 2002 than from 1984 to 1989. “This result,” they
argue, “undermines the allegation of a pattern of judicial behaviour that is part of
Manfredi’s account of the impact of the delegitimization of the override on Charter
adjudication (i.e., that levels of judicial activism have risen since the delegitimization
of the override through its use in Bill 178).” 7
Although
superficially persuasive,
the Choudhry and Hunter analysis
misunderstands Manfredi’s argument and thus uses an incorrect measure to test it.
Although they rely on the summary version of the argument found in Judicial Power
and the Charter, Choudhry and Hunter do not refer to its full elaboration in a paper
entitled “Strategic Judicial Behaviour and the Canadian Charter of Rights and
Freedoms”.78 Manfredi’s principal concern in that work was to understand why the
73 Choudh-y & Hunter, supra note 1 at 531, 535-36 and 553-55.
74 Ibid. at 535.
” Ibid. at 536 (paraphrasing Manfredi, Judicial Power and the Charter, supra note 9 at 4-5, 184-
88).76 Ibid. at 554.
77 Ibid.
78 Christopher P. Manfredi, “Strategic Judicial Behaviour and The Canadian Charter of Rights and
Freedoms” in Patrick James, Donald E. Abelson & Michael Lusztig, eds., The Myth of the Sacred:
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Supreme Court had selected a more intrusive remedy in Vriend v. Alberta79 than it had
in R. v. Morgentaler,8″ two cases involving divisive moral issues. In Morgentaler, the
Court refused to declare a constitutional right to abortion and struck down the
Criminal Code’s abortion provisions on procedural grounds. While these grounds
were sufficient to nullify the existing law, they were narrow enough to leave room for
the re-criminalization of abortion under a different administrative scheme. By
contrast, in Vriend the Court left the Alberta legislature with almost no room to
manoeuver by reading sexual orientation into the province’s human rights legislation.
One obvious explanation for these different outcomes is attitudinal: changes in
the Court’s composition-eight of nine justices turned over from 1988 to 1998-
produced an institution that was collectively more willing to exercise judicial review
aggressively. However, evidence concerning the individual voting behaviour of the
1998 and 1988 justices in Charter cases suggests that this explanation is insufficient.8’
The principal alternative to the purely attitudinal explanation is that the Court in both
instances was reacting strategically to different sets of institutional constraints. This
explanation suggests that the level of remedial activism increased from Morgentaler
to Vriend because the justices perceived fewer institutional constraints in the latter
case on their ability to assert constitutional supremacy over the legislative and
executive branches of government. The principal difference, Manfredi argued, was
that the Court in Vriend could be more confident that it would not face the possibility
of legislative override, because of both the particular circumstances of the case and
the general decline of the override’s political legitimacy.
With this more elaborate version of Manfredi’s argument in mind, it is possible to
see where the Choudhry and Hunter analysis goes astray. The measure they use in the
analysis assumes that Manfredi’s argument concerns restraint versus activism when,
in fact, it is about different forms of activism (i.e., nullification versus imposition).82
Manfredi suggested that the strategic relationship between the Supreme Court and
legislatures under the Charter could be modelled as a game that begins when a group
or individual challenges the constitutionality of legislation. The game’s first move
belongs to the Court, which has a choice among three options.
* The Court can defer to the legislature, uphold the legislation, and leave the
policy status quo intact.
* The Court can declare the legislation unconstitutional and nullify it. If it
nullifies, the legislature can then defer to the Court, pass an alternative law,
or override the Court’s judgment by invoking section 33. To some degree,
The Charter, the Courts and the Politics of the Constitution in Canada (Montreal & Kingston:
McGill-Queen’s University Press, 2002) at 147-67. Choudhry and Hunter do not cite this chapter.
“9 [1998] 1 S.C.R. 493, 156 D.L.R. (4th) 385 [Vriend].
‘0 [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385 [Morgentaler].
81 Kelly, “Rebalancing”, supra note 13 at 680.
82 Both Morgentaler and Vriend are activist decisions even by the Choudhry and Hunter definition
(i.e., they both involve government losses where a majority act was challenged).
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the legislature’s options among these three alternatives depend on the basis
for nullification. For example,
if the Court nullifies because of an
insubstantial governmental objective or an irrational connection between
means and ends, then it will be extremely difficult to re-legislate. In any
event, legislative deference produces a policy vacuum; alternative legislation
produces a new status quo that could be challenged later; and an override
produces a reinforced status quo that is immune to Charter review for at least
five years.
* The Court can impose a different policy. In this case, the legislative options
are reduced to two: defer or override. The first choice produces the Court’s
ideal policy, while the second produces a reinforced status quo.
In essence, where the Court perceives that legislatures are unlikely to override its
decisions, it is in a stronger position to impose its ideal policy preferences on
legislatures.
Thus, an overall decline in the legitimacy of the override should result in more
aggressive remedies, which is a very different hypothesis than the one tested by
Choudhry and Hunter. Indeed, because courts can nullify without necessarily
imposing specific policy consequences on legislatures, the availability or likelihood of
a legislative override is unrelated to the basic choice between restraint and activism.
To be sure, the strategic argument based on the override’s delegitimization might still
be wrong for either theoretical or empirical reasons. Theoretically, the Court’s justices
might not be strategic actors who seek to maximize their ideal policy preferences in a
context of institutional constraints. Empirically, the override may not have been
delegitimized, or there may be no evidence that the Court has more frequently relied
on intrusive remedies like “reading in” since 1988. However, since the evidence
presented by Choudhry and Hunter on Hypothesis 4 speaks
to a different
phenomenon, it does not necessarily refute Manfredi’s argument.
Is there any evidence, however, to support Manfredi’s claim? Leaving aside the
theoretical question,83 there is independent support for the empirical components of
the argument. The most obvious evidence for the override’s lack of legitimacy is its
non-use by governments. Although notwithstanding clauses currently exist in
provincial legislation,’ 4 no government has used section 33 to override a judicial
decision since Bill 178. This includes the Alberta marriage statute, which was a
83 This question can only be resolved by gaining access to information that the Canadian court is
presently unwilling to provide. For discussions of the US Supreme Court as a strategic actor, see
Walter E Murphy, Elements of Judicial Strategy (Chicago: University of Chicago Press, 1964), and
Lee Epstein & Jack Knight, The Choices Justices Make (Washington, D.C.: CQ Press, 1998).
84 See Tsvi Kahana, “The Notwithstanding Mechanism and Public Discussion: Lessons from the
Ignored Practice of Section 33 of the Charter” (2001) 44 Can. Pub. Admin. 255 (listing sixteen
legislative invocations of the notwithstanding clause, seven of which were still in force in 2001).
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private member’s bill and is undoubtedly unconstitutional on federalism grounds (as
Choudhry and Hunter point out).85 For a scholar like Patrick Monahan, who once
defended section 33, the Bill 178/Meech Lake episode suggested that “the inclusion
of the notwithstanding clause in the 1982 constitution was clearly a very serious
mistake.”86 Indeed, Andrew Heard has argued that the episode so undermined the
political legitimacy of section 33 that the reluctance of governments to invoke the
clause may develop into a binding constitutional convention. 87 Even members of the
Court, when both active and retired, have indicated their awareness of the political
difficulty of invoking the override.88
It is more difficult, but not impossible, to demonstrate empirically that the Court
adjusted its decision-making behaviour to changes in the override’s political viability.
In addition to Manfredi’s micro level analysis of Morgentaler and Vriend, consider
the Court’s decision in the Alberta Labour Reference89 that freedom of association
does not include the right to strike. The Court rendered this decision against the
background of Saskatchewan’s pre-emptive use of the override to shield back-to-work
legislation from precisely this constitutional claim. The Court could have indirectly
confronted Saskatchewan, but this might have provoked Alberta into invoking the
override. With Saskatchewan having successfully set a precedent in this area, labour
unions may have been the victims of strategic restraint by the justices. Macro level
support for the argument also exists. Prior to 1991, the Court did not once use
“reading down” or “reading in” as a remedy for Charter violations, and nine of the ten
uses of these remedies have occurred since 1993. 0
the Court has
systematically enhanced the scope of remedial powers under the Charter from
Indeed,
85 Bill 202, Marriage Amendment Act, 4th Sess., 24th Leg., Alberta, 2000, cl. 5 (assented to 23
March 2000), S.A. 2000, c. 3. See Choudhry and Hunter, supra note 1 at 555.
86 Patrick J. Monahan, Meech Lake: The Inside Story (Toronto: University of Toronto Press, 1991)
at 169. Monahan’s earlier position can be found in Monahan, Politics and the Constitution, supra note
18 at 118-19.
87 Andrew Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics
(Toronto: Oxford University Press, 1991) at 147. Heard’s view was largely confirmed during the
September 2003 debate on the opposition’s opposite sex marriage resolution. See Christopher P.
Manfredi, “Same-Sex Marriage and the Notwithstanding Clause” (2003) 24:9 Policy Options 21.
88 Bertha Wilson, ‘The Making of a Constitution: Approaches to Judicial Interpretation” (1988) P.L.
370 at 375 (suggesting that the notwithstanding clause had “only rarely been invoked, presumably
because it might spell political suicide for any government that invoked it!”); Robert Fife, “Right
Wants Power Back from Courts” National Post (22 February 1999) A2 (“G6rard La Forest … told the
National post yesterday that elected politicians risk public censure if they start overruling court
judgements … ‘generally speaking [s. 33] is not a clause that the population has wanted any wide use
of. I suspect that is why [governments] have not used it.”‘).
89 Reference Re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313, 38 D.L.R.
90 See James B. Kelly, Governing with the Charter [manuscript in preparation] (data also on file
(4th) 161.
with authors).
2004] MANFREDI & KELLY- MISREPRESENTING THE SUPREME COURT’S RECORD?
763
Schachter v. Canada (1992)91 to Doucet-Boudreau v. Nova Scotia (2003).92 As James
Gibson has argued, judicial decision-making is a “function of what [judges] prefer to
do, tempered by what they think they ought to do, but constrained by what they
perceive is feasible to do.”93 The progressive delegitimization of section 33 has
changed Canadian judicial perceptions of the feasible scope of policy intervention.
Conclusion
It should be beyond dispute that the Charter has enhanced judicial power by
expanding the range of social and political issues subject to the Supreme Court’s
jurisdiction. What is contentious is the implication of Charter review for Canadian
democracy and the appropriate balance between judicial and political institutions
attempting to govern with the Canadian Charter of Rights and Freedoms. In this
article we raised questions about Choudhry and Hunter’s interpretation of claims
made by political scientists on the question of the Supreme Court and judicial power.
Although intended to expose and debunk alleged misrepresentations of the Supreme
Court’s record by political scientists,
itself
misrepresented the contributions of political scientists to this debate and erroneously
attributed claims about judicial activism to an identifiable group of scholars.
the Choudhry and Hunter article
While we disagree with their interpretation of the Supreme Court’s record
because it generally downplays the importance of judicial power, we attribute that
disagreement to differences in the types of questions asked by law and political
science. In our view, the Supreme Court has been, is, and always will be a political
institution. Its justices make policy not as an accidental byproduct of performing their
legal functions, but because they believe that certain legal rules will be socially
beneficial. Indeed, the central objectives of political science, which are to understand
the institutional relationships between actors that exercise power and to evaluate how
this power is used, prevent the discipline from simply focusing on judicial activism,
and instead allows it to understand how the Charter shapes the use of political power
by every political institution it affects. It is within this framework, where judicial
activism is simply one dimension of the response to entrenched rights, that we seek to
understand the implications of judicial power. On this most fundamental issue,
therefore, Choudhry and Hunter failed to engage political scientists by attempting to
9’ [1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1 (holding for the first time that “reading in” is an
aperopriate remedy for Charter violations).
2 [2003] 3 S.C.R. 3, 232 D.L.R. (4th) 577 (holding that the meaningful protection of Charter rights
may require novel remedies, and that the remedial power cannot be strictly limited by statutes or
common law). Although this is a minority education language rights case to which the override does
not apply, the majority’s discussion of remedies applies to all Charter rights.
93 James L. Gibson, “Decision Making in Appellate Courts” in John B. Gates & Charles A.
Johnson, eds., The American Courts: A Critical Assessment (Washington, D.C.: CQ Press, 1991) at
256, citing James L. Gibson, “From Simplicity to Complexity: The Development of Theory in the
Study of Judicial Behaviour” (1983) 5 Pol. Behav. 7 at 7.
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[Vol. 49
disprove claims that, in the final analysis, are at the periphery of our concern with the
Supreme Court and the Charter.
