Q&A Interview with UTP Authors Emmett Macfarlane, Janet Hiebert, and Anna Drake

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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. Read the full Q&A below:

1. Tell us about when the idea for writing this book first came to fruition. Is there a story behind it? How did this topic get fleshed out?

The initial idea for a joint book came well over a decade ago. Janet was working on Charter “vetting” by department of justice lawyers within the executive, as well as legislative scrutiny of rights in Canada and in comparative perspective, and Anna was working as her research assistant. Emmett was working on a postdoctoral project examining legislative responses to judicial decisions under the Charter. In the intervening years Anna and Emmett would land faculty positions at the University of Waterloo, but in different ways their collective research interests never strayed too far from where they were, albeit with very different framing and a considerable number of major developments over the last decade. The work on this book did not begin in earnest until 2017, when the authors finally sat down to develop a framework and a specific set of cases studies with which to animate it. Janet’s work on the legislative development process, Anna’s on justice, theory, rights, and gender, and Emmett’s on institutional interactions under the Charter complemented each other to help shape the book as it is. Examining the approaches of the Conservative government under Stephen Harper and its Liberal successor under Justin Trudeau became a natural object of focus, as did the specific policy areas relating to criminal justice and social policy issues that comprise a major focus on the book. The result is, we think, a substantial volume on the institutional relationships under the Charter that is the product of our entire careers thus far in thinking about these particular issues.

2. What was the most challenging aspect of this project?

Once the writing phase began certain aspects of the book came together fairly quickly, but a key challenge was the continually evolving events shaping each of the major case studies in the book (criminal justice policy, the approval process for safe consumption sites, sex work policy, and medical aid in dying). Even while we were writing there was ongoing litigation or new legislative initiatives in almost all these areas. Moreover, some of the things we ended up analyzing in the book, like the introduction of “Charter statements” by the justice department, or provincial uses of the Charter’s notwithstanding clause, were ongoing developments as we went to peer review. We had to be relatively cautious about how we approached certain issues and flag uncertainty (for example, disparate outcomes in ongoing litigation around Canada’s sex work laws continue today, as do debates about medical aid in dying).

3. Tell us about the research process for this book. Was there something in your research that surprised you?

One major object of study was parliamentary debate. As political scientists, we were well aware that Parliament hardly exemplifies the ideals of reasoned-based deliberation, but there was still nonetheless some surprise at the extent to which talking points and prepared messaging dominate the record, even outside of Question Period or when you might not expect the MPs to be thinking about the cameras. In many respects, our primary findings conformed to our expectations, but it was a bit depressing to read through some of the debates to find how little independent thought certain elected representatives appear put into what they say on the House floor or even in committee deliberations.

4. What was your experience working with the editor/editors of this book?

As always, working with Dan Quinlan – and indeed, the rest of the UTP editorial team – was a fantastic experience.

5. What do you hope your target audience will take away from reading Legislating under the Charter?

We worked hard to present nuanced empirical findings and explanations for the ways the legislative process in Parliament and the executive operates. There are multi-faceted features of these institutions and the actors inhabiting them that contribute to the ways that Canadians’ Charter rights are scrutinized and protected (or, indeed, not protected). We think our book provides a compelling account of these dynamics and that they have not received sufficient scrutiny in the academic literature. But we think the book will also be tremendously valuable for policy practitioners and decision makers, as well as journalists and the general public, to the extent that it sheds new light on the work and different approaches of governments and Parliament to public policies that have fundamental rights implications. We also hope our reform proposals gain some attention and discussion, because we hold out hope that improvements to transparency and accountability remain possible and can improve the ways rights are protected in Canada.


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