Tuesday, September 05, 2006

Original Meanings: Blakeney on the Charter

As Scott Lemieux justly reminded me, not all critics of judicial power are on the right. In Canada, the first really far-reaching academic critique of Charter jurisprudence was from Michael Mandel, a Marxist at Osgoode. The conservative Calgary gang (Knopff, Morton, Flanagan) have been pretty good about admitting that they have largely trodden Mandel's ground. (There are parallels in the US with Mark Tushnet and arguably John Hart Ely -- going back further, the legal realists were basically on the left and all about demystifying judical power).

In Canada, we have the paradoxical circumstance that a left-wing judicial-review skeptic, Allan Blakeney, was a major source of the 1982 Constitutional settlement. The notwithstanding clause, the lack of entrenched property rights, aboriginal and treaty rights -- all were mainly his doing. Other living framers of the settlement -- Roy McMurtry and Barry Strayer -- are in the intermediate appellate courts. A few are dead. Most are retired and give little thought to constitutional law. Blakeney's still thinking about it, and isn't happy (turn to p. 8 of the pdf). Since we don't get to interview Madison about what he thinks of the Rehnquist court, and since such interviews would doubtless be interesting no matter what your view of originalism, I hope my American readers will be patient with a discussion of Blakeney's role and current opinionating.

Blakeney was able to play such a critical role despite leading a small province (he was premier of Saskatchewan), partly out of sheer interest, and partly because he was a median player. As a pro-legislative-supremacy somewhat-provincialist social democrat, he and Roy Romanow, his attorney general, were able to talk along a number of dimensions. (According to Romanow's book, Chrétien talked to McMurtry, AG for pro-Charter but Tory Ontario, who talked to Romanow, who could get BC and Nova Scotia on board, and by talking to Blakeney, could get to Lougheed of anti-Charter Alberta, who could talk to Lyon and Levesque. You can see why Canadians might have more appreciation of Lebanese politics than most Americans. But we can't be too superior: that last link didn't work out in the end.)

Up until 1982, Canada had no constitutionally-entrenched bill of rights -- the British principle of legislative supremacy prevailed subject to a federal division of powers. The only reason that a law could be unconstituional was that the wrong level of government had enacted it. It was unconstitutional for the Alberta legislature to ban press criticism of the government's economic policies, but only because that was something only the Federal parliament could do.

In fact, the principle of judicial review rested on the ultimate legislative supremacy of the Westminister Parliament. Canada's constitutional documents, as imperial legislation, were paramount to its ordinary domestic enactments. The awkward part of this was that amendments to the Constitution had to be accomplished in London -- very embarrassing after Canada became independent in 1931, but we were unable to agree to any better way of doing business. And so matters remained until 1981-2, when the monomania of Pierre Trudeau interfered with this way of doing business.

Trudeau decided that Canada must have a domestic amending formula and a written constitutional bill of rights. But he had no strong views about what must be in the bill of rights, other than provisions about mobility and language. The federal NDP strongly supported Trudeau's project, but its only Premier, Blakeney, was not so sure. Ambivalence provided a certain amount of power -- Blakeney got both what was most important to Saskatchewan parochially (confirmation of its jurisdiction over its resources and an amending formula that did not give it lesser status as originally proposed by Trudeau), but also a framework that reflected his perspective. The first draft of the Charter was a product of Justice Canada, the Joint Commons/Senate committee and progressive interest groups, but the final edit owes a lot to Blakeney.

From the interview, it is clear that Blakeney is concerned about the SCC's constitutionalization of commercial speech and "substantive due process," and wishes politicians would use the notwithstanding clause more. He is scathing about the Provincial Court Judges Reference and the Chaoulli decision. He is pleased with how the Charter has improved equality for gays and lesbians and reformed criminal procedure, while stating some ambivalence on both abortion and aboriginal rights jurisprudence.

Blakeney's interesting on the subject of original intent. Asked how much it should matter to ongoing judicial interpretation what the politicians who agreed to the Charter thought they were doing, Blakeney replies:

Quite a bit at first, and decreasingly over time. We are all in favour of treating the Constitution as a "living tree." But I don't think it is right for the courts to decide that they don't like the tree we planted, dig it up and transplant another species. The speed with which the Court renounced what the politicians, and I would argue, the public, thought it meant was astounding.

Blakeney was speaking very shortly after the Chaoulli decision inserting the courts into the debate about two-tiered Medicare, and is obviously enraged by it. Like many of the Court's legally controversial decisions, it has found a certain amount of favour with the public (thus putting a critique relying too heavily on democracy in some difficulty -- Blakeney has the same difficulty dealing with the political convention in English Canada against use of the "notwithstanding clause").

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