The Constitution as Framework for Governance

Abstract

Since the entrenchment of the Canadian Charter of Rights and Freedoms, there has been a tendency to view the judiciary as being the primary institution responsible for securing and advancing constitutional rights and values. Less attention has been paid to what role government might have in this regard. In this article I explore the government’s role in what scholars sometimes refer to as ‘constitutional implementation’ and offer a theory of Canadian constitutionalism that better reflects this role. Following Alexy, I suggest that, guided by the ‘framework’ established by the Charter, government can be understood to play a central role in securing and advancing constitutional rights and values. If the Charter imposes explicit limits on state power as well as certain affirmative obligations, then the government’s role in constitutional implementation is much greater than is generally acknowledged. Once this role is better understood, certain deficiencies in the conventional account of Canadian constitutionalism become clear, particularly insofar as this account conceptualizes the Charter as comprising a series of limits on government power and imagines government as a potential rights-infringer to be reined in by the courts.

Keywords: constitutional law, Canadian Charter of Rights and Freedoms, constitutional responsibilities of government