Legislating under the Charter: Parliament, Executive Power, and Rights
Published: April 2023© 2023
Imprint: University of Toronto Press
Page Count: 264 Pages
Dimensions: 6.00 x 9.00
264 Pages, 6.00 x 9.00 x 0.75 in
Legislating under the Charter explores how governments and Parliament justify limitations on rights when advancing laws that raise rights concerns or when responding to judicial decisions under the Canadian Charter of Rights and Freedoms.
Through an analysis of legislation concerning criminal justice policy, the approval of new safe consumption sites, sex work, and medical assistance in dying, the book provides a detailed analysis of the extent and nature of parliamentary deliberation about rights, the extent to which government initiatives are properly scrutinized, and the broader institutional relationships under the Charter. The authors draw from a host of qualitative data, including research interviews and examination of judicial decisions, various bills under study, Hansard debates from the floor of the House of Commons, committee and Senate scrutiny of legislation, bureaucratic advice and Charter statements by the department of justice, and news media coverage.
The book offers a set of concrete reform proposals to improve the transparency and accountability of executive and bureaucratic vetting processes, and to strengthen the role of Parliament in upholding constitutional values and holding the government to account. In doing so, Legislating under the Charter contributes to the broader comparative scholarship on models of judicial review, morality policy, policy change, and constitutionalism.
1. Institutional Relationships, Executive Dominance, and Legislating under the Charter
2. “Vetting”: Analyzing Bureaucratic and Executive Assessments of Rights Compatibility
3. The Legislative Process and Charter Rights: Criminal Justice Policy and the Harper Government
4. Legislative Responses under the Charter: Harm Reduction and Drug Policy
5. Legislative Responses under the Charter: Sex Work Policy
6. Legislative Responses under the Charter: Medical Assistance in Dying Policy
7. Transparency, Accountability, and Robust Legislative Scrutiny on Rights: Possibilities for Reform?
"Scholars of the Charter know courts have driven rights interpretation in Canada. In Legislating under the Charter, Macfarlane, Hiebert, and Drake unravel why governments and legislators have failed to engage seriously with Charter rights and, critically, present reforms to strengthen the legislative process under the Charter. Compelling and nuanced, this is a must-read for Canadian and comparative scholars of policymaking, governance, and constitutional law."Erin Crandall, Associate Professor of Politics, Acadia University
"The authors’ thoughtful and thorough examination of how the heads of the executive branch and parliamentarians responded to Supreme Court Charter decisions on contemporary issues of moral policy – criminal justice, access to drugs, the rights of sex workers, and medical assistance in dying – is by far the most illuminating study we have had of the Charter’s impact on legislating in Canada. A must-read for anyone interested in how the Charter is judicializing our politics."Peter H. Russell, Professor Emeritus of Political Science, University of Toronto
"Legislating under the Charter breaks new ground through its in-depth examination of how the legislative process, parliamentary debate, and government justifications for advancing policies that implicate Charter rights interact to produce policy outcomes. These three scholars bring a wealth of knowledge and expertise to produce an important and valuable study of how key government actors work – sometimes together and sometimes in tension with each other – to produce policy in areas involving Charter rights. The authors bring a realist approach to the political workings of government and of our party system in order to produce a candid and constructive assessment of Charter policymaking."Adam Dodek, Professor, Faculty of Law, University of Ottawa