THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS: THE LESSONS OF COMPARATIVE JURISPRUDENCE

Abstract

The Canadian Charter of Rights and Freedoms was constrained, in its drafting and adoption, by special Canadian historical factors: the need, expressed by the Prime Minister and a number of provincial Premiers during the Quebec "sovereignty-association" referendum campaign in the Spring of 1980, to "renew" Canadian federalism if only Quebec would vote against separation, and the constitutional amendment machinery then extant which seemed to require complex inter-governmental bargaining before any federal approach to Great Britain for formal amendment of the British North America Act. In the result, the new Charter is a governments' and not a peoples' charter, with a strong bureaucratic imprint in its language and styling which will complicate subsequent judicial interpretation. It seems certain that, in the sheer volume and range of the new human rights litigation to be expected under the Charter, a veritable revolution in Canadian constitutional legal practice and legal thoughtways will occur: The courts will experience extreme pressures to rule on great political causes célèbres, raising the issue of judicial policy-making and the shifting boundaries between law and politics. Traditional concepts of judicial independence, of the relations between the courts and coordinate, executive and legislative arms of government, and even of court jurisdiction and process may need reexamination.