'Thank God We're Here': Judicial Exclusivity in Charter Interpretation and its Consequences

Abstract

Given the inevitability of good faith disagreement when it comes to interpreting the rights and freedoms in the Canadian Charter of Rights and Freedoms, the way in which the Supreme Court, Parliament, and the provincial legislatures perceive their roles under the Charter is obviously of crucial importance. At the outset of our second generation under the Charter, the Court's role is clear: it has claimed the role of guardian of the constitution. For their parts, however, neither Parliament nor the provincial legislatures have asserted any claim to interpretive authority where the Charter is concerned. On the contrary, judicial exclusivity in Charter interpretation is a norm that has been factored into political deliberations.

Political inertia on rights-based issues is indeed a problem, but Court is as much part of the problem as the solution. By being helpful or more grandly purporting to do its duty in Charter cases, the Court diminishes not only the importance of political resolution of rights questions but the likelihood that it will occur.

The author discusses the federal government's strategy in Canadian same-sex marriage litigation, and the way in which the government used the reference procedure in an attempt to shift responsibility for the issue to the Supreme Court of Canada. (Note: The Court's subsequent decision in the same-sex marriage reference is discussed by the author in "Political Litigation and the Role of the Court", also available on SSRN.)

Keywords: Constitutional law, judicial review, Canadian Charter of Rights and Freedoms, judicial exclusivity, advisory opinions, passive virtues, political questions, same-sex marriage

JEL Classification: K10