The effects of the Canadian Supreme Court's charter interpretation on regional and intergovernmental tensions in Canada.
By adopting the Charter of Rights and Freedoms in 1982, Canadians invited judicialization. Before 1982, parliamentary power was sovereign, except for the constraints of federalism. Consistent with Canada's English roots, Canadian practice had "left the civil liberties of Canadians to be protected by the moderation of their legislative bodies" rather than by their judges.(2) Prior to the adoption of the Charter, Canadian courts lacked much power to protect individual rights. For example,
between 1867 and 1982, Canadian judges presiding at criminal tribunals had virtually no authority to remedy rights violations by police or prosecutors. The only ground for striking down legislation, criminal or otherwise, was that it had been enacted by the wrong level of government.(3)
In 1960, Parliament did adopt a statutory Bill of Rights, but it applied only to federal authorities, and it was not an "entrenched" constitutional document. As such, judges were reluctant to interpret it in ways that would dramatically expand their power.(4)
The Charter has transformed that system by entrenching the protection of a long list of rights and liberties, and by giving courts power to grant appropriate remedies to enforce constitutional guarantees.(5) Canadian judges have used their new powers to assert judicial authority over a wide range of contentious policy issues, declaring themselves competent to decide the fate of abortion regulations, Cabinet foreign-policy decisions, and provincial language codes, among others.(6) Especially in determining which policies constitute reasonable limits on rights (under Section 1 of the Charter),(7) judges have begun to consider the wisdom of legislative choices rather than merely their legal form. Judges have also encouraged litigation by fostering the claims of interest groups and by liberalizing access to the courts for third-party intervenors.(8) These moves to judicial activism represent "a sharp break with the Anglo-Canadian legal tradition of parliamentary primacy and judicial self-restraint."(9) These suggests that judicialization is well underway in Canada.
Judicialization has involved more than the expansion of rights review. It has also meant an increasingly important role for the Canadian Supreme Court in the politics of federalism and regionalism. This article discusses three areas in which the Supreme Court's Charter decisions are having significant effects on the Canadian federation: (1) the Court's impact on the balance of power between the national and provincial governments; (2) the Court's impact on the tension between English Canada and Quebec; and (3) the relationship between the Court's decisions and regionalism.
JUDICIALIZATION AND FEDERALISM
In federal systems, judicialization usually works to the advantage of the national government. High courts in federal systems are more likely to strike down policies adopted by regional or provincial governments than those adopted by national governments.(10) For example, the U.S. Supreme Court has clearly favored national power, overturning state laws much more often than national laws throughout its history.(11) Even the European Court of Justice, despite the greater claims to sovereignty of its member states, has often promoted the power of union treaties and laws over the interests of its subsidiaries.(12) Thus, Andre Bzdera contends that
the centralist tendency of federal high courts logically leads them to abandon effective judicial review of federal legislation while at the same time they continue to review and often invalidate legislation of the member states.(13)
The Charter redounds to the favor of national power not only by increasing the power of the Canadian Supreme Court, but also by creating a national set of entrenched rights applied equally in all jurisdictions. This enforces a sort of conformity, restricting the amount of divergence possible. In this way, "a national bill of rights is, in important respects, a centralizing instrument."(14) By applying such protections in all jurisdictions, high courts are performing, de facto, a centralizing task.
The Charter was designed to have such centralizing effects.
From the beginning, the Trudeau government made the moderation of centrifugal territorialism the central element in its strategy of constitutional reform. The Charter Of Rights and Freedoms was a key component of this strategy; it was intended not only to protect rights, but also to promote national unity.(15)
With the Charter, Pierre Trudeau hoped to foster greater identification with the nation as a whole by emphasizing the possession of rights common to all Canadians.(16) The Charter embodies a "pan-Canadian focus on individual and collective rights" without regard for provincial distinctions.(17) Even the Charter's protection of language rights for French speaking Canadians throughout the country was part of the nation-building strategy. By ensuring the rights of francophones outside Quebec, Trudeau hoped to undercut Quebecois nationalism without granting more power or "special privileges" to the province of Quebec.(18) Thus, the Charter symbolizes an elevation of the national over the provincial, and every time the Supreme Court exercises its Charter powers, it symbolically reinforces national unity over provincial diversity.
One might logically expect the Supreme Court to respond to this centralizing constitutional move by increasing its support for the federal government relative to its support for provincial power.(19) The Canadian Supreme Court's record in federalism cases since 1949 already favored the national government. From the end of 1949, when the Supreme Court became the final court of appeal for Canada, until June 1979, the Court demonstrated a tendency to be less supportive of provincial than federal laws. In its constitutional cases of that period, the Court invalidated 25 of 65 (38.5 percent) challenged provincial laws, but only 4 of 37 (10.8 percent) challenged federal laws.(20)
However, there are those who suggest that, at least since 1970, the Supreme Court has been remarkably evenhanded in its treatment of federal and provincial power. Peter Russell notes that prior to 1982, the Court maintained an "uncanny balance" between the federal and provincial governments in the areas of economic management and criminal law.(21) This was possible because "the Court...balanced what it...conceded to the central government with one hand by denying federal power or granting power to the provinces with the other."(22) Russell attributes this evenhandedness to the justices' awareness that "they have a credibility problem because one side, the federal government, appoints them and constitutionally controls their institution."(23) Given that the Charter has only increased the potential for provincial distrust of the Supreme Court, the justices may pursue a more balanced course than Bzdera and the judicialization literature would lead one to expect.
Analysis of the lower courts' initial Charter decisions tended to support those who expected a centralizing effect. Rainer Knopff and F. L. (Ted) Morton found that the Canadian judiciary as a whole was twice as likely to overturn provincial laws as federal laws in the first year under the Charter.(24) Smithey also found that both the Supreme Court and the provincial courts of appeal were initially more deferential to federal laws than to provincial laws.(25) It appears that the earliest period under the Charter did work to the advantage of the federal government.
However, if we examine the whole first decade of Supreme Court Charter decisions, we find that the Court did not favor Ottawa over the provinces. Between April 1984 and June 1994, the Supreme Court decided 276 Charter cases involving eighty-nine national laws and forty-six provincial laws.(26) Examining the Court's treatment of these laws reveals no centralist bias. Indeed, the Supreme Court's record is one of deference to both orders of government. In its Charter cases, the Court was generally supportive of government authority, upholding the actions of both orders of government in a majority of cases(27) (see Table 1).
Table 1 Rates of Supreme Court Support for National and Provincial Laws, Year 1984 to June 1994 National policy Provincial policy All challenged challenged policies Court Rules for 62.5% 72.3% 65.9% the Government (55) (34) (89) Court Rules against 37.5 27.7 34.1 the Government (33) (13) (46) Total 100 100 100 (88) (47) (135)
Clearly, then, the Supreme Court has not lived up to centralist predictions. In numeric terms, at least, despite being a national institution interpreting a national bill of rights, the Supreme Court has not supported national power more frequently than provincial power. In fact, it has done the opposite; the Supreme Court has been slightly more supportive of provincial laws than the laws of the federal government, although the relationship is not statistically significant. This suggests that Russell's description of the justices as sensitive to the appearance of a nationalist bias may be on the mark. The Charter may have subordinated the provinces' legislative authority to a national statement of rights, but the national government has not become the Supreme Court's constitutional favorite.
JUDICIALIZATION AND QUEBEC
Even though the Supreme Court has been evenhanded in its treatment of federal and provincial policies, the Charter and the Court's interpretation of it have increased the divide between Quebec and the rest of Canada. From the beginning, the Charter was perceived by many observers as hostile to Quebec's interests. Traditionally, constitutional change in Canada has required unanimous approval of the provinces, in effect giving Quebec a veto over constitutional amendments. In conflict with this tradition, the Trudeau government sought to adopt the Charter without unanimous consent. The Supreme Court facilitated this attempt by ruling, in The Patriation Reference , that only a "substantial degree" of provincial consent was required to patriate the constitution and bind the governments of Canada to abide by the Charter.(28) In November 1981, Trudeau achieved the substantial agreement he needed by hammering out a compromise with the leaders of the nine other provinces.(29) Many people in Quebec view this agreement as a betrayal, referring to the evening the compromise was reached as "the night of the long knives." Despite the Quebec National Assembly's vote against ratification, Quebeckers were unable to stop the Charter from being imposed upon them.
Quebeckers were most offended by the Charter's guarantee of bilingualism. As James Bickerton suggests, "For the Quebec government, Charter supremacy is viewed as a threat to the province's power to promote the French language and culture."(30) By requiring equal treatment of both languages, the Charter limited the ability of Quebec's leaders to advantage the use of French. This was perceived as endangering Quebec's viability as a separate culture.
Attempts were made to reach another constitutional compromise that would address Quebec's dissatisfaction. In 1987, the provincial premiers met with Prime Minister Brain Mulroney to produce the Meech Lake Accord. The accord was intended to "bring Quebec back in" by redressing many of the province's concerns about the new provisions of the Constitution. The tradition that three Supreme Court justices should come from Quebec would be entrenched in the Constitution. A "distinct society" clause was also to be added to the Charter as a Quebecois-friendly guide to judicial interpretation, encouraging the courts to find that provincial efforts to safeguard the French language satisfied the "reasonable limits" analysis performed under Section 1.(31) The adoption formula for the Meech Lake proposal also addressed Quebec's irritation with the Charter; this time, every province had to agree to the amendment.
Before the accord could achieve the support it needed, the Supreme Court entered the fray, incensing the Quebecois and sealing the fate of the accord. On 15 December 1988, the Court announced its decision in Ford v. Quebec,(32) a case involving a challenge to the Quebec Charter of the French Language, which forbade the display of public signs, posters, and advertising in any language other than French. In Ford, the Court held that the Section 2(b) right to freedom of expression included personal and commercial expression in the language of a person's choice, and that Quebec's prohibition on the use of English was too sweeping to be justified as a reasonable limit in a free and democratic society.
Most Quebecois saw the Ford decision as a profound obstacle to attempts to protect their language and culture. The decision was followed by widespread protests in Quebec, including vandalism to English shops and schools, and rallies in support of pro-French legislation. Premier Bourassa's government in Quebec responded by quickly invoking the Section 33 override and passing Bill 178, which allowed the use of English inside businesses, but required outdoor signs to be in French alone. As Morton notes, Ford made the adoption of Meech Lake seem that much more important to Quebeckers because it "confirmed the 'threat' of the Supreme Court's exercise of judicial review under the Charter and the necessity of a distinct society clause."(33)
Unfortunately for Meech Lake supporters, reactions inside Quebec inspired a backlash in the rest of Canada. The use of Section 33 provoked a profound shift in anglophone public opinion against Meech Lake. Quebec's insistence on official unilingualism seemed to many other Canadians to "undermine the equality of citizens and the equality of provinces as constitutional norms."(34) It appeared that Quebec could not be trusted to protect Charter rights if it was granted special status. Quebec's insistence on being "distinct" flew in the face of "the sleek principle, now become orthodoxy, that provincial equality or uniformity is a fundamental and inviolable constitutional value."(35) In early 1989, Meech Lake was rejected by the Manitoba legislature, and its ratification was revoked in Newfoundland. Its rejection "has accentuated the polarization between Quebec and the rest of Canada."(36)
Russell concludes his assessment of these events by writing that
English Canada's wrath over Quebec's use of the override revealed the irony of the Charter of Rights. That Charter, Trudeau's Charter, designed to unify Canada, had become a profound source of disunity....It was not the substance of the Charter but the Charter as symbol, as icon, which in the heat and passion of mega constitutional politics became profoundly divisive.(37)
Russell is right to conclude that the Charter was a crucial component of the conflagration. However, it is crucial to understand that it was not the Charter alone that so angered the Quebecois and set off the backlash throughout the rest of Canada. Focusing solely on the Charter's role omits an important part of the story. Constitutions do not interpret themselves.
It was the Supreme Court's interpretation of the Charter that caused so much controversy. The Court was not compelled to reach the decision it did in Ford. It could have relied on Section 1, declaring the sign law to be a reasonable limit on expression rights. It did exactly that in Devine v. Quebec,(38) a similar case handed down the same day. The Court might even have endeared itself to Quebeckers if it had mentioned the importance of protecting French culture as the Section 1 justification for limiting Section 2(b). Instead, the Court struck at the heart of efforts to keep Quebec a "distinct society." By rejecting this key component of the Charter of the French Language, the justices made a singular contribution to shaking the foundations of the Canadian federation.
To this point, it would appear that the Supreme Court is opposed to Quebec's interests. An examination of the Court's treatment of Quebec overall, however, suggests a fairly balanced approach to the province. Laws from the province have been challenged in eight of the Court's Charter cases. The Court has upheld Quebec's statutes in five (62.5 percent) of them. Given that the Court supports statutes in 66 percent (89/145) of its Charter cases, we can conclude that the Court's support for Quebec's laws is commensurate with the support it gives to those from other Canadian governments.
Even in the sensitive area of language rights, the Supreme Court has not been completely hostile to Quebecois aspirations. The Court has decided four cases challenging language policy in Quebec. The Court ruled against Quebec in Ford and Quebec v. Quebec Protestant School Boards.(39) It ruled for Quebec in Devine and MacDonald v. Montreal(40) It is clear that Quebec stands an even chance of succeeding before the Canadian Supreme Court, even in language-rights cases.
The Court has also held the other provinces to the same standard it has applied to Quebec. In Quebec Protestant School Boards, the Court invalidated a section of the French Charter that limited education opportunities in English in Quebec. The Court reached a similar decision in Mahe v. Alberta,(41) disallowing the Alberta School Act requirement that French schools give 20 percent of their instruction in English. Both jurisdictions were required to follow through on the Charter's guarantee of instruction in one's first language.(42)
The Court also took similarly permissive positions toward Quebec and New Brunswick in cases concerning linguistic requirements in the administration of justice. In Societe des Acadiens v. Association of Parents,(43) the Court upheld New Brunswick's practice of allowing judges whose first language is English to sit on panels hearing cases to be argued in French. In MacDonald, the Court upheld Quebec's issuance of an arrest summons written only in French. The administration of justice apparently need not adhere as strictly to bilingualism as other aspects of provincial policy. These cases suggest that the Supreme Court has taken an evenhanded approach to evaluating policies from Quebec.
Why should the Supreme Court be perceived as an anti-Quebec institution if it treats Quebec just like the other governments in Canada? The key point is that Quebeckers do not want to be treated like every other province. Theirs is "une province pas comme les autres" - a province unlike the others.(44) Quebec did not accept the Charter; having it applied to Quebec's policies in the same way it applies in the other provinces is insulting rather than mollifying.
This is particularly true in language-rights cases, which raise issues central to Quebecois attempts to save their culture from assimilation with English Canada. Such concerns mean that the outcome in cases like Ford, which challenge Quebec language or cultural policy, are considered more crucial than cases that raise other issues or involve other provinces. In this respect, Ford is similar to the Brown(45) decision in the United States. It mattered little to Southerners how the U.S. Supreme Court treated southern policies in general or how the South fared in comparison to other regions; what mattered was that segregation was a crucial policy objective that the Supreme Court would be reviled for challenging.
The Ford decision was particularly unacceptable to the Quebecois because it demonstrated that Quebec cannot achieve "distinct status" if the Supreme Court applies Charter rights to laws in Quebec as if they were from any province. By choosing to treat Quebec like the others, the Court moves farther away from the asymmetrical version of federalism preferred by Quebeckers. This approach underscores the new constitutional principle of provincial equality. This, in turn, reinforces the belief that Quebec will have to weaken its ties to the rest of Canada if it wants to maintain its cultural integrity.
JUDICIALIZATION AND REGIONALISM
It is understandable that much of the attention paid to the problem of Canadian unity focuses on the divide between Quebec and the Rest of Canada (ROC). Canada, however, experiences other important forms of regionalism as well. David Bercuson argues that stubborn regional identifications keep Canadians from being neatly divided between "the French and the 'English' of the bicultural illusion."(46) Canada is usually described as consisting of five regions: Ontario; Quebec; British Columbia; the Atlantic provinces of Newfoundland, New Brunswick, Nova Scotia, and Prince Edward Island; and the Prairie provinces of Alberta, Saskatchewan, and Manitoba. Even though there are differences of opinion within these regions,(47) each region has certain political and constitutional concerns in common, and together they have a decided impact on Canadian politics.
Canadian regional tensions have a long history. Center-periphery tensions emerged over time as inhabitants of the western and Atlantic provinces came to resent the political and economic advantages enjoyed by residents of central Canada (Quebec and Ontario). A number of factors have contributed to such resentment. Ontario and Quebec have always had much larger populations than the other provinces. Together, they have 174 of 295 seats in the House of Commons. As a result, central Canada has been the "major beneficiary of national economic, cultural and social policies."(48) From the railroad and development policies of the late nineteenth century through the price controls on oil in the 1970s and 1980s, Ottawa's "tariffs and transportation policies...were responsible for protecting industries at the centre, while impairing the peripheries."(49) These "peripheral" provinces share the complaint that they lack "political voice in the central government. Whether rich or poor, the seven provinces experience the same feelings of political powerlessness."(50)
The Charter and its interpretation by the Supreme Court have both reinforced and modified the tension between center and periphery in Canadian politics. On the one hand, they reinforce the weakness of the periphery because both the Charter and the Supreme Court are creatures of the national government, a government that has continually favored central Canada. The Supreme Court, like the other national institutions, is located in Ontario, and six of its nine justices are always chosen from Quebec and Ontario, without any input from the provinces. At this symbolic level, Canadian judicialization has the potential to deepen feelings of resentment outside central Canada.
On the other hand, the Charter and the Supreme Court modify the usual center-periphery split by marginalizing Quebec as well. In constitutional terms, Quebec's experience is like that of the western and Atlantic provinces in Canadian politics more generally. In fact, the compromise that led to the adoption of the Charter had the approval of every province but Quebec, suggesting that the normally central province has been even less influential in Charter negotiations than provinces in the West or the Atlantic region. The Supreme Court's rulings in Quebec Protestant School Boards and in Ford removed Quebec's control over education and language policy, deepening the sense that the province had lost power over crucial policy issues.(51) When special attention was paid to Quebec's constitutional concerns, the rejection of Meech Lake led to even greater feelings of alienation. Having such little influence over constitutional negotiations and being deprived of their ability to give special treatment to the French language, Quebeckers may easily see themselves as part of a constitutional periphery.
Unlike Quebec, Ontario remains central in constitutional politics as well as Canadian politics at large. Despite changes in party control of the province, Ontario has consistently backed the nationalist position in all three "rounds" of constitutional negotiation.(52) Ontario was one of only two provinces that was willing to accept Trudeau's initial Charter proposal, even before the adoption of Section 1 or the notwithstanding clause. In the debate over Meech Lake, Ontario premier David Peterson supported the federal government's position by agreeing to the accord, but only after stressing his concern that the "distinct society" clause not undermine the pan-Canadian rights guaranteed in the Charter. Citizens of Ontario also voted "Yes" while all the western provinces, plus Quebec and Nova Scotia, voted "No" in the Charlottetown Referendum of 1992. The Ontario government has also argued for the pan-Canadian position before the Court; when Ontario intervenes in Supreme Court cases, it tends to argue for increasing both the Charter's applicability and the scope of judicial review. Thus, we can agree with Morton when he concludes that in Charter politics, there is a new
centre-periphery axis, where the centre is constituted by Ontario and federalist elites in Quebec (of both French and English persuasion). The periphery includes not just the Western and Maritime hinterlands, but also the nationalist-separatist elites in Quebec.(53)
The question to ask, then, is whether the Supreme Court's Charter decisions are adding to such regional disparities. Is Ontario's privileged position being reinforced by the Court's rulings? To answer this question, we examine the treatment given to policies from Ontario and the other provinces, and to the decisions of the courts of appeal. If the Supreme Court gives greater support to the laws and judges of Ontario, we may conclude that it is reinforcing the dominance of the constitutional center over the periphery. On the other hand, finding that the Court is relatively even-handed in its approach to all regions would suggest that the justices may be sensitive to regional tensions and the appearance of fairness.
The record in Charter cases suggests that Court has not been regionally neutral. Unlike the balance it strikes in its support of federal and provincial policies, the Supreme Court's record indicates a clear propensity in favor of the constitutional center. The Supreme Court upholds a majority of all policies it considers from both Ontario and the other provinces. However, it is considerably more likely to uphold policies from Ontario (see Table 2). The Court upheld government authority in 87 percent (13/15) of the cases when Ontario was challenged, but in only 65 percent (20/31) of the cases when other provinces were challenged. Ontario's success rate before the Court is also higher than that of the federal government, which won 62.5 (55/88) percent of its cases.
Table 2 Rates of Supreme Court Support for Provincial Laws Year 1984 to June 1994 Court rules Court rules Region for government against government Total Ontario 87% 13% 100% (13) (2) (15) Others(a) 65 35 100 (20) (11) (31) All Provincial Laws 72 28 100 (33) (13) (46) a Provincial laws are upheld by the Supreme Court at the following rates: Atlantic 100 percent (3/3); Prairie 69 percent (9/13); Quebec 62.5 percent (5/8); and British Columbia 43 percent (3/7).
This finding is underscored when we examine the Supreme Court's treatment of lower court decisions. In affirming a lower court's disposition of a case, the Court confers another form of political support. Conversely, when the Court overturns a lower court decision, it sends the signal that the lower court is out of line, a message that lower court judges seek to avoid.(54) Regions whose courts receive higher levels of Supreme Court affirmation are judicially advantaged just as legislatures are when their policies are upheld. If the Ontario Court of Appeal is affirmed at a higher rate than the appeals courts in other regions, we will have another piece of evidence that increasing the Supreme Court's power has had distinctly regional effects.
The data confirm this expectation. Of the 254 cases that reached the Supreme Court on appeal from the highest courts in the provinces,(55) the Supreme Court affirmed the lower court in 168 (66 percent) of these cases. When we divide the cases by region, we find clear differences in the pattern of dispositions (see Table 3). Once again, Ontario benefited disproportionately from the Court's Charter interpretation. The Court of Appeal for Ontario was affirmed in 80 percent of the cases appealed to the Supreme Court. The courts of appeal for the Prairie and Atlantic provinces did significantly less well on appeal; the Supreme Court affirmed those courts just over half the time (56 percent and 54 percent, respectively). The Quebec Court of Appeal did the least well; its decisions are overturned in 63 percent of the appeals from its judgments heard by the Supreme Court. The one exception to the Court's tendency to favor the constitutional center was the treatment given to appeals from British Columbia. Although the British Columbia Court is not as successful as its counterpart in Ontario, it was much more likely to be affirmed than any of the courts from the other "peripheral" provinces. With this one exception, however, the Supreme Court's disposition of appellate court decisions is consistent with the constitutional center-periphery argument.
Table 3 Rates of Success for Courts on Appeal to the Supreme Court Year 1984 to June 1994 Lower Court Lower Court Region upheld overturned Total Ontario 80.2% 19.8% 100% (81) (20) (101) British Columbia 73.3 26.7 100 (33) (12) (45) Prairie 56.4 43.6 100 (31) (24) (55) Atlantic 53.8 46.2 100 (14) (12) (26) Quebec 35.3 66.7 100 (10) (17) (27) All Regions 66.5 33.5 100 (169) (87) (254)
It is important to note that the Supreme Court's Charter decisions have not instituted new regional disparities as much as they have reinforced a preexisting pattern. Peter McCormick's examination of the Court's disposition of appeals from the courts of appeal in general Supreme Court cases revealed a similar rank ordering in the provincial courts' rates of affirmation.(56) The Ontario Court of Appeal was affirmed most often (62 percent), followed by the British Columbia Court (58 percent), the Prairie courts (54
There are two departures from the general pattern, however. The Supreme Court is much more likely to overturn the Quebec Court in Charter cases than in the general category of cases. Quebec's appellate success rate in general appeals puts it in the middle of the order, above both the Atlantic and Prairie courts.(57) In contrast, Quebec is the only court of appeal that is overturned in more than half of its Charter appeals.(58) Ontario's appellate record is also more extreme in Charter cases. Although Ontario's success rate is highest in both types of cases, it is even more advantaged when the Charter is at issue. Its success rate jumps from just over 60 percent in general appeals, to just over 80 percent in Charter appeals. The Court's Charter decisions have clearly affected the regional balance in the disposition of appeals.
The picture becomes even clearer when we examine the treatment of appellate court decisions in light of the ways in which the lower courts dealt with challenges to provincial policies. The Court gives its strongest vote of support to a province when it upholds a court of appeal which has itself upheld a provincial policy. By contrast, the Court may be seen to express only moderate support for a province if it upholds its court of appeal while overturning its policies. By this measure of combined support, Ontario again emerges as the most favored province. The Supreme Court upheld both the court and the policy from Ontario in twelve of fifteen cases. The lone reversal of the Ontario Court of Appeal supported provincial government policy.(59) Since then, the Supreme Court has only overturned two policies from Ontario, and no decisions of the Ontario Court of Appeal.(60)
Although many Quebecois resent the Supreme Court's power to apply the Charter to their policies, an examination of combined support reveals that the Court has actually tempered the application of the Charter in that province. In eleven of the seventeen cases in which the Supreme Court reversed the Quebec Court of Appeal, the lower court had supported Charter claims.(61) The Court's treatment of policies from Quebec suggests that the Supreme Court is also more supportive of that province's power than the Court of Appeal. In three of four reversals, the Supreme Court overturned the lower court to support government power.(62) Perhaps the Court ought not be considered to be so hard on Quebec after all. The Supreme Court could be viewed as protecting Quebec policy from too much Charter activity on the part of its own Court of Appeal. For obvious reasons, Ford being first among them, this opinion is not likely to be widely accepted in Quebec.
The pattern of regional variation in the Supreme Court's citation of lower court decisions reveals judicial bias by region as well. References made by one court to the decisions of another are considered a sign of influence.(63) A judge's citations of another court may reflect actual influence or may be added "for show." Either way, citations indicate the esteem in which the source is held; why cite an "inferior" prestige court to strengthen an argument? Comparing the rates at which the Supreme Court cites the courts from different regions suggests that the opinions of judges from some regions are valued more than others.
The Supreme Court's citation of provincial courts(64) is similar to its disposition of their appeals (see Table 4). The fewest citations are to courts in Quebec and the Atlantic provinces. The Court is slightly more likely to cite the courts in Alberta, Saskatchewan, and Manitoba than we might expect from their relative disadvantage on appeal. But Ontario's voice is again the loudest. When it comes to securing the Court's notice, it is far and away the favorite. It monopolizes the Court's attention. Once again, the Court's Charter activity benefits the constitutional center over the periphery.
Table 4 Supreme Court Citation of Provincial Courts Year 1984 to June 1994 Number of Number of Region citations citations per case Ontario 534 1.93 Prairie 219 0.79 British Columbia 192 0.70 Quebec 132 0.48 Atlantic 97 0.35 All Regions 1174 4.25
Why should Ontario be so favored by the Supreme Court? On institutional grounds, the Court may be positively disposed toward Ontario because three of the nine justices come from that province.(65) Ontario also has a long history of power and prestige in Canadian politics, which has included greater success than other provinces in Supreme Court decisions. Ontario's support for the Charter and other constitutional reforms, including significant budget allocations to fund Charter litigation,(66) suggest that the Ontario judges and legislature may have been particularly faithful in upholding the Charter, or at least in conforming to the Supreme Court's view of the Charter.
A number of factors contribute to the high rate of citation of Ontario opinions. To begin with, the population is larger, and there is a higher rate of litigation there; hence, there are more cases from Ontario for the justices to choose from on appeal. The justices from Ontario should also be particularly familiar with that province's case law, which would surely contribute to a greater number of citations to that province.
Whether the justices find Ontarians more convincing, know the case law because there is more of it, or appreciate Ontario citations for their value as "window dressing," it is precedent from Ontario that appears with the greatest frequency in the Canadian Supreme Court Reports. The Charter opinions of the Supreme Court are peppered with references to Canada's constitutional center.
The adoption of the Charter opened the possibility of judicialization in Canada. The judiciary embraced its new powers, such that now:
Scarcely a week goes by that policy makers do not face a new Charter ruling that obstructs or constricts policy formulation or administration.... The result, according to a cabinet-level professional from Ontario, is that "Charter awareness" now "permeates the corporate consciousness of government policymakers."(67)
Although it has not always acted like other courts with expansive powers, the Canadian Supreme Court has taken advantage of its Charter opportunities to become a force in Canadian politics.
The Court has had a significant impact on federal and regional relations in Canada. In numeric terms, the Court has been fairly evenhanded in its approach to national and provincial power. On a symbolic level, however, the Court has been a nationalist institution. With its decision in The Patriation Reference, the Court weakened provincial prerogatives by allowing nationalists to change the constitution without unanimous provincial consent. This decision began a cycle of events that initially angered and later infuriated many Quebecois, and eventually resulted in a backlash in anglophone Canada over calls for special treatment for Quebec. Given the nature of the federal and regional debate in Canada, the symbolic importance of the Court's Charter interpretations has so far overshadowed the balance struck by the Court between national and provincial power.
The Court has not been so balanced in its treatment of the laws and appellate courts in Ontario and the other provinces. The Court has strongly favored Ontario in both areas. Its government wins much more frequently than any other. Its appeals court is upheld more frequently on appeal, and references to Ontario's decisions permeate the Court's Charter opinions. Although this sort of favoritism is less likely to receive public attention than language-rights cases from Quebec, it has significant implications for constitutional development, as well as for conflict between the Canadian center and periphery.
The Canadian Supreme Court's interpretation of the Charter may be considered a tale of unanticipated consequences as well as one of judicial impact. The Charter was supposed to entrench the protection of rights in Canada. In addition, it has entrenched the power of the judiciary. The Charter embodied nationalist hopes for increasing Ottawa's power over the provinces. Instead of promoting national power at the expense of the provinces, the Court has made Charter decisions that maintain a balance of federal power similar to the one that existed prior to this constitutional change.
The Charter was also promoted as a document that would pull Canadians together because it secured full national independence from Britain and created common rights and liberties. It was hoped that uniform rights would pacify separatists in Quebec by satisfying francophone demands for the protection of both Canadian cultures. Instead, through two subsequent rounds of constitutional reconsideration, Canadians seem more divided into interest groups and regions than they did before 1982.(68) The Supreme Court's interpretation of the Charter has contributed greatly to the failure to achieve greater unity. The impact of the Court's evenhanded approach to the Charter's language rights has been exactly the opposite of what was intended in 1982. A document designed to pull the nation closer together has been interpreted in ways that have added to the centrifugal forces at work in Canada.
AUTHOR'S NOTE: I wish to thank Lawrence Baum, Jeffery Mondak, F. L. Morton, and Howard Ishiyama for helpful suggestions on earlier drafts of this article.
1 Torbjorn Vallinder, "The Judicialization of Politics - A Worldwide Phenomenon: Introduction," International Political Science Review 15 (Summer 1994): 91-99.
2 Richard Bronaugh, C. Barry Hoffmaster, and Stephen Sharzer, eds. Readings in the Philosophy of Constitutional Law (Dubuque, IA: Kendall Hunt, 1983), p. 7.
3 Robert Harvie and Hamar Foster, "Ties That Bind? The Supreme Court of Canada, American Jurisprudence and the Revisions of Canadian Criminal Law Under the Charter," Osgoode Hall Law Journal 28 (Winter 1990): 732.
4 For example, Berend Hovius and Robert Martin, "The Canadian Charter of Rights and Freedoms in the Supreme Court of Canada," Canadian Bar Review 1983 (March 1983): 358, found that the Supreme Court upheld government action challenged under the Bill of Rights in 29 of 30 cases between 1961 and 1982.
5 Section 24(1) reads: "Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances."
6 The Supreme Court found its jurisdiction sufficient to reach decisions in each of these situations in R. v. Morgentaler  1 SCR 30, Operation Dismantle v. R.  1 SCR 441, and Ford v. Quebec  2 SCR 712.
7 Section 1 declares that the rights in the Charter are guaranteed, "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
8 For further elaboration, see F. L. Morton, "The Charter of Rights and English Canada," (presented at the conference on "The Rest of Canada Outside Quebec," Roberts Centre for Canadian Studies, York University, 29 April-1 May 1994).
9 F. L. Morton, "Judicial Politics Canadian-Style: The Supreme Court's Contribution to the Constitutional Crisis of 1992," Constitutional Predicament: Canada After the Referendum of 1992, ed. Curtis Cook (Montreal: McGill's-Queen's University Press, 1994), p. 135.
10 See, for example, Peter Hogg, "Is the Supreme Court of Canada Biased?" Canadian Bar Review 57 (December 1979): 721-39; Edward McWhinney, "Judicial Review in a Federal and Plural Society: The Supreme Court of Canada," Comparative Judicial Review, ed. John Smidhauser (Boston, MA: Butterworth's, 1987), pp. 63-74; and Andre Bzdera, "Comparative Analysis of Federal High Courts: A Political Theory of Judicial Review," Canadian Journal of Political Science 26 (March 1993): 3-29.
11 See, for example, Lawrence Baum, The Supreme Court, 4th ed. (Washington D.C.: Congressional Quarterly Press, 1992) and John Kincaid, "A Proposal to Strengthen Federalism," Journal of State and Local Government 62 (January/February 1989): 36-45.
12 For example, in Costa v. E.N.E.L.  ECR 585, a case challenging the nationalization of electricity in Italy, the European Court of Justice (ECJ) decided that joining the European Economic Community (EEC) required member states to transfer some aspects of sovereignty to the Community, so that the EEC Treaty and Community law supersede contradictory laws of member states. See Klaus-Dieter Borchardt, The ABC of Community Law (Luxembourg: Office for the Official Publications of the European Community, 1990). Based on cases like this one, Alberta M. Sbragia, "The European Community: A Balancing Act," Publius: The Journal of Federalism 23 (Summer 1993): 33-38, concludes that the ECJ "has played a key role in promoting European integration."
13 Bzdera, "Comparative Analysis of High Courts," 20.
14 Brian Galligan, Rainer Knopff, and John Uhr, "Australian Federalism and the Debate Over a Bill of Rights," Publius: The Journal of Federalism 20 (Fall 1990): 53-67.
15 Rainer Knopff and F. L. Morton, "Nation Building and the Canadian Charter of Rights and Freedoms," Constitutionalism, Citizenship and Society in Canada, eds. Alan Cairns and Cynthia Williams (Toronto: University of Toronto Press, 1985), p. 133.
16 Thomas Axworthy, "Colliding Visions: The Debate over the Charter of Rights and Freedoms, 198081," The Constitutional Future of the Prairie and Atlantic Regions of Canada, eds. James McCrorie and Martha MacDonald (Regina, Saskatchewan: Canadian Plains Research Centre, 1986), p. 21.
17 Ronald L. Watts, "Canadian Federalism in the 1990s: Once More in Question," Publius: The Journal of Federalism 21 (Summer 1991): 169-190.
18 Peter Russell, Constitutional Odyssey: Can Canadians Be a Sovereign People? (Toronto: University of Toronto Press, 1992).
19 By "supporting a government," I mean that the Court upholds the general authority of a provincial or federal government, not the leadership (party, prime minister, or premier) in power. In most contexts, willingness to agree to another's proposal is considered evidence of "support." Parties who lose court cases certainly feel that the Court does not support them. When I discuss the Court's support for different governments, I am not suggesting that votes to uphold government authority necessarily result from a conscious plan on the part of the justices.
20 Hogg, "Is the Supreme Court of Canada Biased?"
21 "The Supreme Court and Federal-Provincial Relations: The Political Use of Legal Resources," Canadian Public Policy 11 (June 1985): 161-171.
22 Ibid., 163.
23 Ibid., 164.
24 Knopff and Morton, "Nation Building and the Canadian Charter of Rights and Freedoms," 148.
25 Shannon Ishiyama Smithey, "Judicial Adaptation to the Uncertainties of Constitutional Transformation: The Canadian Supreme Court and the Courts of Appeal Under the Charter of Rights and Freedom," (Ph.D. diss., Ohio State University, 1994), p. 50.
26 A case was included in the data set if it was listed in the "Constitutional Law" section of the index to the Canadian Supreme Court Reports and described as raising a Charter issue. Because it took some time for cases to work their way through the appeals system, the Supreme Court's first Charter decision was not handed down until 1984. Just over half (143) of the Court's Charter decisions have involved challenges to the conduct of government officials rather than to statutes. Given that many of the actions taken by these officials either are not sanctioned by law or are not clearly national or provincial in nature, they are excluded from the analysis in this section.
27 This is true if we include Charter cases involving challenges to official conduct as well. The Court rules in favor of the government in 68 percent of its Charter cases. Cases were coded based on their outcomes. In cases not involving Section 24(b), if the Court found that there had been a rights violation, the case was coded as one where the Court ruled against the government. Otherwise, cases were considered decided in favor of the government. In Section 24(b) cases, a case was considered decided against the government only if the Court found a rights violation and excluded the evidence.
28 Russell, Constitutional Odyssey, p. 119.
29 Trudeau obtained the substantial degree of support he needed by agreeing to Section 1 and Section 33, the notwithstanding clause, which allows legislatures to exempt laws from applications of Section 2 and Sections 7-15 of the Charter for renewable periods of five years.
30 James Bickerton, "Alternative Futures: Region, National and Constitutional Change," The Constitutional Future of Prairie and Atlantic Regions of Canada, eds. James McCrorie and Martha MacDonald (Regina, Saskatchewan: Canadian Plains Research Centre, 1992), pp. 285-286.
31 Morton, "The Charter of Rights and English Canada," 142.
32  2 SCR 712.
33 Ibid., 143.
34 Watts, "Canadian Federalism in the 1990s," 184.
35 Robert C. Vipond, "Seeing Canada Through the Referendum: Still a House Divided," Publius: The Journal of Federalism 23 (Summer 1993): 39-55.
36 Watts, "Canadian Federalism in the 1990s," 169.
37 Russell, Constitutional Odyssey, pp. 146-147.
38  2 SCR 790.
39  2 SCR 66.
40  1 SCR 460.
41  1 SCR 342.
42 Section 23 guarantees English and French speakers who are in the minority, in their province of residence to receive primary and secondary instruction in that language and to receive that education at public expense "when numbers warrant."
43  1 SCR 549.
44 Robert Dion, "Une Province Pas Comme Les Autres: Region and Ethnicity in Canadian Politics," (presented at the Midwest Political Science Association, Chicago, Illinois, 1992), 1.
45 (1954) 346 US 483.
46 David Bercuson, "Canada's Burden of Unity: An Introduction," David Bercuson, ed. Canada and the Burden of Unity (Toronto: Macmillan, 1977), p. 1.
47 See, for example, David Milne, "Challenging Constitutional Dependency: A Revisionist View of Atlantic Canada," The Constitutional Future of the Prairie and Atlantic Regions of Canada, eds. James McCrorie and Martha MacDonald (Regina, Saskatchewan: Canadian Plains Research Centre, 1992), pp. 308-317.
48 Bercuson, Canada and the Burden of Unity, p. 2.
49 Therese Arseneau, "The Prairies and Atlantic Canada: Constitutional Common Ground?" The Constitutional Future of the Prairie and Atlantic Regions of Canada, eds. James McCrorie and Martha MacDonald (Regina, Saskatchewan: Canadian Plains Research Centre, 1992), p. 327.
50 Ibid., 328.
51 Morton, "Judicial Politics, Canadian Style."
52 For greater detail, see Morton, "The Charter of Rights and English Canada."
53 Ibid., 11.
54 See, for example, Robert Satter, Doing Justice: A Trial Judge At Work (New York: Simon and Schuster, 1990).
55 One of the other twenty-two cases was referred directly to the Court by the national Governor in Council. The other twenty-one cases were appealed from the Federal Court of Appeal, the courts of appeal from the territories, or the military courts.
56 Peter McCormick, "The Supervisory Role of the Supreme Court of Canada: Analysis of Appeals from the Provincial Courts of Appeal, 1949-90," Supreme Court Law Review 2nd Series 3 (1992): 1-28, examined all Supreme Court cases taken on appeal from the high courts in the provinces decided between September 1949 and June 1990.
57 Ibid., 13.
58 This is in seeming conflict with my earlier conclusions that Quebec has not been particularly disadvantaged by the Court's Charter decisions. However, if we look at which side prevailed in cases argued in Quebec, we find that the Supreme Court has actually been more restrained in its application of the Charter in Quebec than has the Quebec Court of Appeal. Further discussion of this point is provided in the two succeeding paragraphs.
59 In Law Society of Upper Canada v. Skapinker  1 SCR 357, the Supreme Court upheld Ontario's policy of admitting only permanent residents of Canada to the provincial bar. The Ontario Court of Appeal had overturned the policy on the ground that it violated Section 6 mobility rights.
60 When courts of appeal were upheld, the Supreme Court found in favor of provincial authority at the following rates: Ontario (12/14), Quebec (2/4), British Columbia (1/5), Prairie (5/6), and Atlantic (2/2).
61 These figures are for all policies challenged in Quebec courts for which there was an appeal to the Supreme Court, rather than merely those adopted by the Quebec government.
62 When the courts of appeal were overturned, the Supreme Court ruled in favor of provincial authority at the following rates: Ontario (1/1), Quebec (3/4), British Columbia (2/2), Prairie (4/7), and Atlantic (1/1). Given the small number of cases for most regions, it is probably best not to infer too much about regional differences from these data.
63 See, generally, Lawrence Friedman, Robert Kagan, Bliss Cartwright, and Stanton Wheeler, "State Supreme Courts: A Century of Style and Citation," Stanford Law Review 33 (May 1981): 773-818; S. I. Bushnell, "The Use of American Cases," University of New Brunswick Law Journal 35 (1986): 157-181; Gregory Caldeira, "Transmission of Legal Precedent: Structures of Communication Between State Supreme Courts," Social Networks 10 (March 1988): 29-55; Harvie and Foster "Ties That Bind?"; Christopher Manfredi, "Use of United States Decisions by the Supreme Court of Canada," Canadian Journal of Political Science 23 (September 1990): 499-518; Smithey, "Judicial Adaptation to the Uncertainties of Constitutional Transformation."
64 Any court case mentioned in any opinion filed for a Charter case counted as a citation. A case could only be counted as a citation once per case, no matter how many times it was mentioned or how many separate justices cited it.
65 McCormick, Supreme Court Law Review, found, however, that justices did not tend to favor their own provinces by affirming a higher percentage of appeals from provincial courts of appeal. Despite the fact that Quebec has the same number of justices on the Court as Ontario, its courts are cited very infrequently.
66 See F. L. Morton, "The Charter Revolution and the Court Party," Osgoode Hall Law Journal 30 (Fall 1992): 627-652.
67 F. L. Morton, Law, Politics and the Judicial Process in Canada, 2nd ed. (Calgary, AB: University of Calgary Press, 1992), pp. 628-629, quoting J. Jai, executive coordinator of the Cabinet Committee on Justice in 1991.
68 For example, many westerners express strong resentment of the "special" rights sought by indigenous peoples, women, and francophones under the Charter. The Court's encouragement of interest-group litigation has almost certainly fostered the resentment in the western provinces that helped fuel support for the Reform Party. (See Morton, "The Charter Revolution and the Court Party," and "The Charter and English Canada.")
Shannon Ishiyama Smithey is Assistant Professor of Political Science at the University of Pittsburgh where she teaches judicial politics and constitutional law. Her current research explores the diffusion of judicial power in democratic systems, as well as a range of topics in Canadian and American judicial behavior.
|Printer friendly Cite/link Email Feedback|
|Author:||Smithey, Shannon Ishiyama|
|Date:||Mar 22, 1996|
|Previous Article:||Accountability expectations in an intergovernmental arena: the National Rural Development Partnership.|
|Next Article:||The Council of Australian Governments and intergovernmental relations: a case of cooperative federalism.|