Abstract. One of the most frequently mentioned, yet seriously understudied, changes brought to Canadian society by the Charter of Rights and Freedoms is its influence on political debate and how citizens understand and treat rights. This empirical lacuna is significant because several scholars of Canadian politics have suggested that “rights talk” can have negative implications for political discourse, given that rights are too often presented in absolute, uncompromising terms. This article represents a first attempt to investigate this phenomenon. It presents a content analysis of the media's presentation of rights issues, and evaluates how rights are portrayed during coverage of Supreme Court Charter decisions.Résumé. L'un des changements les plus notables apportés à la société canadienne par l'adoption de la Charte des droits et libertés est son influence sur les débats politiques et, plus particulièrement, sur la manière dont les citoyens interprètent leurs droits. Ce changement important est toutefois très peu étudié. Cette lacune empirique est significative puisque plusieurs politologues canadiens ont suggéré que le «langage des droits» a des répercussions négatives sur les débats politiques, étant donné que les droits sont souvent décrits en termes absolus et définitifs. Cet article représente une première tentative d'exploration de ce phénomène. Il présente une analyse du contenu médiatique et évalue comment les médias dépeignent les droits dans leur couverture des décisions de la Cour suprême portant sur la Charte.
The Supreme Court of Canada's 1988 decision to invalidate federal criminal law restrictions on abortion is often portrayed as paving the way for unregulated “abortion on demand” in Canada. This depiction belies the patchwork of regulatory barriers to access in place at the provincial level and obscures a host of litigation for improved funding and access across the country. This article explores the policy and legal landscape surrounding abortion access since 1988. Our findings suggest that provincial policies and lower court judgments have shown considerably different interpretations of what the Court's landmark ruling requires. In part, this is a result of a problematic distinction that the Court's reasoning makes between “negative rights,” which are protections against state interference, and “positive rights,” which would require the state to take action or provide funding to ensure access. We examine the implications of this distinction from both a rights and policy perspective, ultimately arguing that courts are not the only, or best, body through which to realize positive rights. Instead, we argue that legislatures need to take seriously their obligations under the Canadian Charter of Rights and Freedoms.
Applying the regime politics approach to the study of judicial behaviour, which regards the Supreme Court as largely operating to preserve the policy agenda of the existing lawmaking majority, this paper evaluates the Court's behaviour during the Conservative government's tenure. There is evidence to support the basic core of the regime politics thesis. The Court rarely invalidates laws passed by the sitting government. Nonetheless, the Court's behaviour during the Conservative government's tenure was distinctive. Incorporating a measure of issue salience—the relative importance of the policies affected—into the analysis demonstrates the Court's impact on the Conservatives' policy agenda stands in sharp contrast to previous governments. It is the only government of the Charter period to have policies in its election platforms blocked by judicial review and the only government in Canadian history to effectively lose all of the constitutional reference cases it posed to the Court.
An important debate implicating rights and Canadian social policy concerns whether the Charter of Rights and Freedoms should largely be limited to protecting negative rights, which prevent interference from government, or whether it should include positive rights, which require governments to provide entitlements to social services like health care, housing, or some minimum standard of welfare. After examining the Supreme Court of Canada’s approach to social rights under the Charter, this essay critically assesses the arguments in favour of expanding constitutional protection for positive rights. Although the essay finds that much of the judicial caution regarding positive rights is appropriate, the court’s reasoning in several controversial health policy cases is insufficiently attentive to the positive rights implications of its ostensibly negative rights approach. This essay thus sheds new light on the debate by demonstrating how cases on abortion, supervised drug injection facilities, and assisted suicide present a difficult dilemma from both a policy and rights perspective: courts may rightly avoid creating new social and economic rights, but the rationale they advance in applying negative rights in these cases provides an equally compelling basis for a positive right to access. It is a conundrum that both courts and the elected branches of government need to do more to address.
There is a growing consensus that parliamentary systems with recently enacted bills of rights constitute a new model of constitutionalism that serves as a middle ground between parliamentary sovereignty and judicial supremacy. One of the key features often discussed in relation to this ‘weak-form’ or ‘Commonwealth’ model of judicial review is the notion of an inter-branch dialogue about rights that permits legislatures to respond to court rulings about the policies at stake. This article develops a framework for empirically assessing whether and how dialogue operates in practice. A systematic examination of legislative responses to Supreme Court rulings affecting legislation in Canada finds that relatively little genuine dialogue occurs in practice because legislatures rarely respond in a manner that departs from the dictates of the Court’s rulings. The article then explores the implications this type of empirical assessment might have for other parliamentary systems.
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