Peter H. Russell

Judicial power and Canadian democracy

The controversy raises challenging questions about the role of a powerful judiciary in a democracy. In Judicial Power and Canadian Democracy, a series of essays commissioned by the Institute for Research on Public Policy, some of Canadas foremost commentators - academics, politicians, and Supreme Court judges themselves - take up the debate. Some tangle over the pivotal question: should judges have the decisive say on issues involving entrenched rights that have profound implication for the policy preferences of elected bodies? Others examine related issues, including Supreme Court appointment procedures, interest group litigation, the historical roots of the notwithstanding clause, and the state of public opinion on Canadas courts. Those interested in the power of the judicial branch will find much in this collection to stimulate fresh thinking on issues that are likely to remain on the public agenda for years to come. Contributors include Joseph F. Fletcher (Toronto), Janet Hiebert (Queens), Gregory Hein (Toronto), Peter W. Hogg (York), Paul Howe, Rainer Knopff (Calgary), Sebastien Lebel-Grenier (Sherbrooke), Howard Leeson (Regina), Kate Malleson (London School of Economics), E. Preston Manning (Reform Party of Canada), Hon. Beverley McLachlin (Supreme Court of Canada), F.L. Morton (Calgary), Pierre Patenaude (Sherbrooke), Peter Russell, Allison A. Thornton (Blake, Cassels and Graydon), Frederick Vaughan (emeritus, Guelph), Lorraine Eisenstat Weinrib (Toronto), Hon. Bertha Wilson (emeritus, Supreme Court of Canada), and Jacob Ziegel (Toronto).

Can the Canadians Be a Sovereign People

No country had been engaged in macro-constitutional politics so intensively for so long as Canada. Macro-constitutional politics, unlike ordinary constitutional politics are about the very nature of the political community on which the constitution is to be based. When constitutional politics is at the macro level, the constitutional question tends to dwarf all other issues. Except for a few short intervals Canada has been engaged in constitutional politics since the mid-1960s. Through this experience and most recently. Canadians have adopted a new constitutionalism requiring popular participation in constitution-making. Thus, as Canadians enter the fifth, and what they hope will be, the final round of macro-constitutional politics, they will find out whether they share enough in common to constitute themselves a single sovereign people.

Overcoming Legal Formalism: The Treatment of the Constitution, the Courts and Judicial Behaviour in Canadian Political Science

In the study of the constitution, courts and judicial behaviour, two distinct strands can be identified. First, the study of constitutional law, which in the 1920s was a paramount concern of the emergent political science discipline, had become by the 1960s a very marginal interest of Canadian political scientists. Although recent events have led to a revival of interest, still only a small handful of political scientists in the English or French-speaking branches of the discipline devote much of their scholarly attention to the law of the constitution. The study of judicial interpretation of the constitution has been almost completely preempted by legal academics. In the meantime, the empirical investigation of courts and judicial behaviour, a subject which in earlier years attracted the attention of neither lawyers nor political scientists, has been slowly emerging as a distinct field of interest for social scientists and empirically oriented legal scholars, although it remains very much at the margin of political science.

The constitution, citizenship and ethnicity

Attempts to establish a unitary sense of Canadian citizenship through symbolic engineering at the constitutional level are self‐defeating. Canadians must accept that their only basis for a common ethnicity is their continuing engagement in the challenge of maintaining a political community in which they can accomplish significant civic tasks together while respecting their multiple identities.

Power Shift: From Party Elites to Informed Citizens (review)

Canadian PubliC PoliCy – analyse de Politiques, vol. xxxviii, no. 4 2012 of violence besides that perpetrated by individuals or small groups, ignoring institutional or structural violence and the harm it inflicts through damaging workloads, policies, and processes. In the editors’ call to “recognize the subtle, multiple (and often ignored) forms of violence that pervade institutions that are meant to protect and care for vulnerable populations and the workers who provide their care” (p. 14), we find the seeds of an approach that addresses multiple forms of workplace violence and empowers those most affected to create the solution.

The Charter of Rights and the Legalization of Politics in Canada. Michael Mandel. Toronto: Wall and Thompson, 1989

Des criptio n In 1982 Canada put a Charter of Rights and Freedoms in its constitution and dramatically changed the nature of Canadian politics by giving the courts, and especially the Supreme Court, a general superintendence over all aspects of government and by making debates about the constitution a dominant theme of Canadian political life. In this thoroughly revised and updated edition of his original 1989 work, Michael Mandel, Professor at York University’s Osgoode Hall Law School, critically examines the history and philosophy of the phenomenon of “legal politics” and the way it has transformed the politics of language, crime, immigration, labour, business, race and gender. A case-by-case study of the important constitutional decisions of the eighties and nineties is joined by a detailed analysis of such major constitutional events as the Meech Lake Accord and the Charlottetown Accord and referendum.  Buy this Book

Comment on “Critics of the Judicial Committee: The New Orthodoxy and an Alternative Explanation”

I appreciate the opportunity Professor Vaughans article provides to clarify some of my thoughts on the Judicial Committee and constitutional interpretation. Vaughan and I are in agreement on two broad points. First, the Judicial Committee of the Privy Council read a theory of classical federalism into the BNA Act. This theory of divided sovereignty was expressed most clearly by Lord Watson in the Maritime Bank case. Secondly, the BNA Acts treatment of federalism is highly centralist, both in the division of powers and in the federal governments imperial powers over provincial governments. Both these points are contained in the following passage from my introduction: “In their anxiety to preserve a division of powers appropriate for “classical federalism” and thereby resist the strongly centralizing tendencies of the constitutional text, the Judicial Committee developed an acute sensitivity to the competing claims of the provinces and the federal government.” I think Professor Vaughan would agree with that statement.