1 See Manfredi, Christopher, “Institutional Design and the Politics of Constitutional Modification: Understanding Formal Amendment Failure in the United States and Canada,” Law and Society Review 31 (1997), 111–136. Manfredi has given this paradigm a more elaborate theoretical treatment in “Litigation and Institutional Design: Micro Constitutional Politics and the Canadian Charter of Rights and Freedoms,” paper presented at the annual meeting of the Canadian Political Science Association, 1993. References in our article are primarily to this more theoretical treatment of the model.
2 See Hiebert, Janet L., “The Evolution of the Limitations Clause,” Osgoode Hall Law Journal 28 (1990), 103–134.
3 Among others, see Hiebert, Janet L., Limiting Rights: The Dilemma of Judicial Review (Montreal: McGill-Queen's University Press, 1996); Knopff, Rainer and Morton, F. L., Charter Politics (Scarborough: Nelson, 1992); and Mandel, Michael, The Charter of Rights and the Legalization of Politics (Toronto: Wall-thompson, 1989).
4 One exception is Morton, F. L., “Judicial Politics Canadian-Style: The Supreme Court's Contribution to the Constitutional Crisis of 1992,” in Cook, Curtis, ed., Constitutional Predicament: Canada after the Referendum of 1992 (Montreal: McGill-Queen's University Press, 1994).
5 Manfredi, “Litigation and Institutional Design,” 2–3.
6 See Hall, Peter A. and Taylor, Rosemary C. R., “Political Science and the Three Institutionalisms,” Political Studies 44 (1996), 936–957. It appears, therefore, that the micro-macro model can be used for comparative purposes. See Manfredi, “Institutional Design” for such an application.
7 Romanow, Roy, Whyte, John and Leeson, Howard, Canada … Notwithstanding:The Making of the Constitution 1976–1982 (Toronto: Carswell, 1982), 234–236; and Smiley, D. V., Canada in Question: Federalism in the Eighties (3rd ed.; Toronto: McGraw-Hill, 1980), 85. For a similar appraisal see Janet Hiebert, “The Evolution of the Limitations Clause” and Bayefsky, Anne, “Defining Equality Rights,” in Bayefsky, Anne and Eberts, Mary eds., Equality Rights and the Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985), 72.
8 Bayefsky, “Defining Equality Rights,” 72.
9 “The idea behind the provincial text was that, if Parliament or a legislative assembly enacted a provision which was thought to infringe rights, it would in most instances, simply by virtue of its being enacted, be considered to be generally accepted in a free society living under a parliamentary democracy” (Romanow et al., Canada … Notwithstanding, 244).
10 See Knopff, Rainer and Morton, F. L., “Nation-Building and the Charter,” in Cairns, Alan and Williams, Cynthia, eds., Constitutionalism, Citizenship and Society in Canada (Toronto: University of Toronto Press, 1985), 133–182. Also see Hiebert, “The Evolution of the Limitations Clause.”
11 Weiler, Paul, “The Making of the Charter,” in Weiler, Joseph and Elliot, Robin, eds., Litigating the Values of a Nation (Toronto: Carswell, 1986), 54. See also Romanow et al., Canada … Notwithstanding, 245; and Hiebert, “The Evolution of the Limitations Clause.”
13 See Riddell, Troy, “The Development of Section 1 of the Charter of Rights: A Study in Constitutional Politics” (unpublished M.A. thesis, University of Calgary, 1994), chap. 2. Allan Blakeney, premier of Saskatchewan, was one of the two witnesses to support the October 1981 draft of section 1.
14 Minutes of the Special Joint Committee on the Constitution 1980–1981 (Ottawa: Queen's Printer6, 1981), 9: 58.
21 Hogg, Peter, Canada Act 1982 Annotated (Toronto: Carswell, 1982) 13.
22 Knopff and Morton, “Charter and Nation-Building,” 152–53.
23 Hiebert, “The Evolution of the Limitations Clause,” 126.
24 Weiler, “The Making of the Charter,” 54.
25 Razack, Sherene, Canadian Feminism and the Law: The Women's Legal Education and Action Fund and the Pursuit of Equality (Toronto: Second Story Press, 1991), 36.
26 These alternative interpretations are set out in Peck, Sidney R., “An Analytical Framework for the Application of the Canadian Charter of Rights and Freedoms,” Osgoode Hall Law Journal 25 (1987), 1–85.
27 Mémoire du Procureur-Générale du Québec, Supreme Court of Canada (SCC), Quebec Protestant School Boards v. A.G. Quebec, 51 (translation by authors).
28 Factum of the Attorney-General (AG) of Saskatchewan, SCC, The Queen v.Big M Drug Mart (1985), 15. In a later case (Dolphin Delivery ), Alberta adopted a similar position. See Ho, Shawn, “The Macro- and Micro-Constitutional Strategies of Provincial Governments in Charter Politics: A Study of Alberta, Saskatchewan and Ontario, 1982–92” (unpublished M.A. thesis, University of Calgary, 1995), 53–54.
29 A.G. of Alberta Factum, S.C.C., The Queen v. Big M Drug Mart, 12.
30 See Hennigar, Matthew A., “Litigating Pan-Canadianism: The Constitutional Strategy of the Canadian Federal Government in Charter Cases, 1982–1993” (unpublished M.A. thesis, University of Calgary, 1996), 54.
31 Factum of the AG of Canada, SCC, The Queen v. Big M Drug Mart, 32.
32 See Hennigar, Litigating Pan-Canadianism, 104, 108.
33 See Manfredi, Christopher P., “Constitutional Rights and Interest Advocacy: Litigating Educational Reform in Canada and the United States,” in Seidle, F. Leslie, ed., Equity and Community: The Charter, Interest Advocacy and Representation (Montreal: Institute for Research on Public Policy, 1993), 104.
34 See Ho, Constitutional Strategies, 62, 67, 74, 75.
35 Manfredi, “Constitutional Rights and Interest Advocacy,” 104.
36 Cairns, Alan, “The Politics of Constitutional Conservatism,” in Banting, Keith and Simeon, Richard, eds., And No One Cheered: Federalism, Democracy and the Constitution Act (Toronto: Methuen, 1983); and Cairns, Alan C., Disruptions: Constitutional Struggles, from the Charter to Meech Lake, ed. by Williams, Douglas E. (Toronto: McClelland and Stewart, 1991).
37 Morton, F. L., “The Charter Revolution and the Court Party,” Osgoode Hall Law Journal 30 (1993), 637–752. See also Morton, F. L. and Knopff, Rainer, “The Supreme Court as the Vanguard of the Intelligentsia: Charter Politics as the Politics of Postmaterialism,” in Ajzenstadt, Janet, ed., Canadian Constitutionalism (Ottawa: Study of Parliament Group), 54–78.
38 We thank one of the Journal's reviewers for pointing out that EGALE has not received core funding. The group has, however, received funds from the Court Challenges Program and funds for special projects, such as opinion surveys.
39 There were several causes. Due to its special “interpretive” character, section 1 lacked a clearly defined and organized constituency that is characteristic of other key Charter sections. Thus the optimal form of micro-constitutional politics—use of systematic litigation—was not a realistic possibility for section 1. For the same reason, section 1 is a component of every Charter challenge to a statute, and is thus impossible to “capture” or “manage,” a key element of systematic litigation strategies. There were simply too many section 1 cases. When the Supreme Court heard oral argument in Oakes, it did not alert interested parties—governments or public interest litigators—that it would use Oakes as the occasion to formulate its first comprehensive interpretation of section 1. As a result, there were no interveners in Oakes. Finally, the Court was not receptive to nongovernment interveners in Charter cases until after 1986.
40 The selected works in this and the next section (40 total) encompass approximately 75 per cent of the English-language authors of section 1 articles identified in the Charter of Rights Annotated Bibliography (Aurora: Canada Law Book, 1993). The remaining commentators had too narrow a focus (for example, “Proof of Facts under Section 1”) or were published in non-Canadian journals. Four articles written by francophones were not used since the Court Party hypothesis identifiesv the“influencing the influencers” campaign by Charter-based groups and their sympathizers as a phenomenon based primarily outside Quebec. See Riddell, “The Development of Section 1,” chap. 3, for a more complete treatment of the methodology and analysis of the survey of section 1 legal commentary.
41 Gibson, Dale, “Reasonable Limits under the Canadian Charter of Rights and Freedoms,” Manitoba Law Journal 15 (1985), 38. Gibson was one of the most frequently cited commentators in Supreme Court decisions between 1985 and 1990. See Black, Vaughan and Richter, Nicholas, “Did She Mention My Name?: Citation of Academic Authority by the Supreme Court of Canada, 1985–1990,” Dalhousie Law Journal 16 (1993), 390.
42 Vose, Clement E., Caucasians Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases (Berkeley: University of California Press, 1959); and Peltason, Jack W., Federal Courts in the Judicial Process (New York: Random House, 1955), 52.
43 Newland, Chester A., “Legal Periodicals and the United States Supreme Court,” Midwest Journal of Political Science 3 (1959), 60–61.
44 Shapiro, Martin, “Public Law and Judicial Politics,” in Finter, A. W., ed., The State of the Discipline II (Washington, D.C.: APSA, 1993), 374.
45 Glendon, Mary Ann, A Nation under Lawyers: How the Crisis in the Legal Profession Is Transforming American Society (New York: Farrar, Strauss and Giroux, 1994), 208–209.
46 Stone, Alec, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (New York: Oxford University Press, 1992), 115.
47 Kommers, Donald P., “The Federal Constitutional Court in the German Political System,” Comparative Political Studies 26 (1994), 487.
48 Razack, Canadian Feminism and the Law,37.
49 Cairns, Alan, “Ritual, Taboo, and Bias in Constitutional Controversies,” in Williams, , ed., Disruptions, 218.
50 See Morton and Knopff, “The Supreme Court as the Vanguard of the Intelligentsia”; also Noble, Gayle, “Legal Literature and Section 15 Charter Litigation: An Interest Group Strategy” (unpublished M.A. research paper, McGill University, 1993), 19. Noble also provides many other examples of Charterbased interest group members who have produced Charter commentary.
51 Commenting on the “volumes of academic constitutional commentary” generated since the entrenchment of the Charter, Cairns notes that the “constitutional involvement of particular groups [ feminist, aboriginal, official language minority, multicultural, visible minority and others ] generates in their elites and academic sympathizers an intimate and empathetic understanding of their [clientele's ] constitutional concerns” (Cairns, “Ritual, Taboo, and Bias,” 215).
52 Morgan, Richard, Disabling America: The “Rights Industry” in Our Time (New York: Basic Books, 1984). It should be noted that, in the US, the work of legal scholars is not a recent phenomena, only their dominant ideology is new. Legal academics played an important role in legitimating the US Supreme Court's support of laissez-faire economics. See Vose, Clement E., Constitutional Change (Lexington: Lexington Books, 1972), chap. 1.
53 Alec Stone's review of Kommers, Donald P., The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press, 1989), in Comparative Political Studies 23 (1990), 410–415.
54 See Sossin, Lome, “The Sounds of Silence: Law Clerks, Policy-Making and the Supreme Court of Canada,” University of British Columbia Law Review 30 (1996), 298–304. Also, Professor Joel Bakan, former clerk to then Chief Justice Dickson (who wrote the majority opinion in Oakes), notes that a clerk's duties include “bringing to the Judges' attention the latest research and scholarship in relevant areas of the law” (personal communication, February 16, 1994).
55 Nominally, Oakes preserved the traditional presumption of validity by placing the burden in the first step on the rights-claimant. However, this burden is more apparent than real. Once there is a finding of a “restriction” on a broadly defined right, Oakes then shifts the burden of proof to the government to prove the “reasonableness” of its “restriction.”
56 The Court could have adopted the “rational connection” test from its earlier Bill of Rights jurisprudence or the slightly more rigorous “proportionality” test from European human rights cases.
57 See Gold, Marc, “Of Rights and Roles: The Supreme Court and the Charter,” University British Columbia Law Review 23 (1989), 507; and Gold, Marc, “The Mask of Objectivity: Politics and Rhetoric in the Supreme Court of Canada,” Supreme Court Law Review 7 (1985), 460. Gold suggests that it sometimes “appears as if the court is writing for the academy.”
58 Tarnopolsky, Walter S., “The Charter and the Supreme Court of Canada,” in Beaudoin, Gérald-A., ed., The Charter Ten Years Later (Cowansville, Quebec: Les Éditions Yvon Blais, 1992), 63–65.
59 Edwards Books and Art Ltd. v. The Queen,  2 S.C.R. 768.
60 This suggests that the Court (and its judges) must be viewed as independent actors within constitutional politics even though the legal academy is an important source of ideas and legitimation for the Court. We thank one of the Journal's reviewers for making this point more explicit. We leave it for later research efforts to determine how individual values, institutional rules and the need for institutional support might interact to determine outcomes.
61 Factum of the AG of Alberta, SCC, RWSDU v. Dolphin Delivery (1986), 9.
62 Factum of the AG of Quebec, SCC, Irwin Toy v. A.G. Quebec (1989), 12–13.
63 Factum of the AG of Saskatchewan, SCC, Public Service Commission v. Osborne (1991), 7.
64 Factum of the AG of Ontario, SCC, R. v. Edwards Books (1986), 62.
65 Factum of the AG of Ontario, SCC, R. v. Zundel (1992), 25. Also see the Ontario factums in cases such as Edmonton Journal v. A.G. Alberta (1989) and Young v. Young (1993).
66 Factum of the AG of Alberta, SCC, R. v. Keegstra (1990), 15.
67 See Riddell, “The Development of Section 1,” chap. 4. These legal commentaries were originally selected by Conni Gibson (using the same criteria as outlined above in n. 40) for a paper for the graduate-level public law course at the University of Calgary. Although the analysis has been reworked, we gratefully acknowledge Ms. Gibson's contribution, specifically the recognition of a “special interest advocacy” category.
68 Colker, Ruth, “Section 1, Contextuality and the Anti-disadvantage Principle,” University of Toronto Law Journal 42 (1992), 77–112. Also see Mendes, “In Search of a Social Theory of Justice.”
69 R. v. Seaboyer,  2 S.C.R. 577.
70 Symes v. Canada,  4 S.C.R. 695.
71 Fogarty, Kenneth, Equality Rights and Their Limitations under the Charter (Toronto: Carswell, 1987).
72 Bayefsky, “Defining Equality Rights,” 51.
73 LEAF possesses all of the characteristics identified by Manfredi as being important to undertake micro-constitutional politics. LEAF has considerable organizational and legal resources, it is a “repeat player” in Charter litigation, and it purports to represent a “politically disadvantaged” group (Manfredi“Constitutional Rights and Interest Advocacy,” 94–95).
74 For a rational choice explanation of LEAF's position see Brodie, Ian, “The Market for Political Status,” Comparative Politics 28 (1996), 253–271.
75 “Factum of LEAF,” SCC, Andrews v. B.C. Law Society, 14–26. LEAF argued for various levels of scrutiny under section 1 (with “strict scrutiny” applied to equality rights infringements on “disadvantaged” groups). See Riddell, “The Development of Section 1,” chap. 4 for a more detailed examination of LEAF's strategy.
77 The Nova Scotia government, for example, argued that “section 1 has a much lesser role to play in section 15 cases” and that the “burden of proof is on the applicant to show a protected right has been infringed” (Factum of the AG of Nova Scotia, SCC, Andrews v. B.C. Law Society, 14, 16).
80 Andrews v. B.C. Law Society,  1 S.C.R., 143, at 181–82. The majority of the Court adopted Justice Mclntyre's interpretive analysis but disagreed with him on the actual outcome of the case. A (large) minority of the Court has recently come under criticism for deviating from this jurisprudence by introducing a “reasonableness” test into section 15 analyses instead of using a separate section 1 analysis. See Keene, Judith, “Discrimination in the Provision of Government Services and S.15 of the Charter,” Journal of Law and Social Policy 11 (1996), 112–115.
81 Other Charter-based interest groups have been relatively successful in translating their success at the macro-level in 1980–1981 into success at the microlevel. See Morton, F. L., Russell, Peter H. and Riddell, Troy, “The Canadian Charter of Rights and Freedoms: A Descriptive Analysis of the First Decade, 1982–1992,” National Journal of Constitutional Law 5,(1994), 1–60. The susceptibility of government legislation to Charter review is demonstrated by the over 40 provincial and federal statutes that the Supreme Court has struck down under the Charter from 1982–1992. This is especially striking when one considers that only one statute was struck down under the 1960 Bill of Rights.
82 Manfredi, “Litigation and Institutional Design,” 25.
84 See Morton, F. L., “The Effect of the Charter of Rights on Canadian Federalism,” Publius 25 (1995), 173–188.
85 A.G. Quebec v. Quebec Assoc. of Protestant School Boards,  2 S.C.R.66.
86 Monahan, Patrick, Meech Lake: The Inside Story (Toronto: University of Toronto Press, 1991), 66.
87 The description of events is taken from Ibid., 116–30.
90 See Lynn Smith, “The Distinct Society Clause in the Meech Lake Accord: Could It Affect Equality Rights for Women?”; Katherine Swinton, “Competing Visions of Constitutionalism: Of Federalism and Rights”; and A. Wayne McKay, “Linguistic Duality and the Distinct Society in Quebec: Declarations of Sociological Fact or Legal Limits on Constitutional Interpretation?” in Swinton, K. E. and Rogerson, C. J., eds., Competing Constitutional Visions: The Meech Lake Accord (Toronto: Carswell, 1988), 35–54, 279–94, 65–80. It should be noted that Quebec feminists did not share the view of their counterparts from English Canada (Smith, “The Distinct Society Clause,” 46 [from the brief of the Fédération des femmes du Quebec (FFQ)]).
91 McKay, “Linguistic Duality and the Distinct Society in Quebec,” 74. Also see Smith, “The Distinct Society Clause,” note 23, 41–42; and 53. See Smith for other arguments forwarded by feminists against the distinct society clause.
92 McKay, “Linguistic Duality and the Distinct Society in Quebec,” 74.
93 Smith, “The Distinct Society Clause,” 43–44. LEAF, NAC and the National Association of Women and the Law called for the protection the Charter's equality guarantees within section 16 of the Accord.
95 McKay, “Linguistic Duality and the Distinct Society in Quebec,” 73.
96 Monahan, Meech Lake, 143–44.
97 Ford v. A.G. Quebec,  2 S.C.R. 712.
98 Monahan, Meech Lake, 161.
99 See Ibid., 161–62; and Russell, Peter H., Constitutional Odyssey: Can Canadians Become a Sovereign People? (2nd ed.; Toronto: University of Toronto Press, 1993), 146. Monahan argues that Bourassa's comments were knowingly exaggerated given the opinions of the constitutional experts in June 1987.
100 Cairns, Alan, Charter versus Federalism: The Dilemmas of Constitutional Reform (Montreal: McGill-Queen's University Press, 1992), 119.
101 Fournier, Pierre, A Meech Lake Post-Mortem: Is Quebec Sovereignly Inevitable? trans, by Fischman, Sheila (Montreal: McGill-Queen's University Press), 21–22.
102 Russell, Consitutional Odyssey, 149.
103 For details see Monahan, Meech Lake, 225–33.
104 Russell, Constitutional Odyssey, 203.
105 Rebick, Judy, “Why Not Women?” Canadian Forum, 10 1992, 14; and Cardozo, Andrew, “Minorities and the Tough Choice,” Canadian Forum, 10 1992, 24.
106 Day, Shelagh, “What's Wrong with the Canada Clause,” Canadian Forum, 10 1992, 21–22.
107 Morton, “Judicial Politics Canadian-Style,” 145.
108 Mendes, Errol P., “Sinking into the Quagmire of Conflicting Visions, Groups, Under-inclusion, and Death by Referendum,” in McRoberts, K. and Monahan, P., eds., The Charlottetown Accord, the Referendum and the Future of Canada (Toronto: University of Toronto Press, 1991), 168.
109 Cardozo, “Minorities and the Tough Choice,” 24.
110 Day, “What's Wrong with the Canada Clause,” 22.
111 Judy Rebick, “The Charlottetown Accord,” in McRoberts and Monahan, eds., The Charlottetown Accord, 104; and Day, “What's Wrong with the Canada Clause,” 21.
113 These included NAC and its leader Judy Rebick, Native Women's Associations of Canada, disabled groups, environmental groups and the “Canada for All Canadians Committee” (and its founder Deborah Coyne) (see Mendes, “Sinking into the Quagmire,” 168).
114 Mary Ellen Turpel, “The Charlottetown Discord and the Aboriginal People's Struggle for Fundamental Constitutional Change,” in McRoberts and Monahan, eds., The Charlottetown Accord, 130.
115 Fournier, A Meech Lake Post-Mortem, 21.
116 This explains why arguments against the Accord were often couched in terms of policy scenarios. For numerous examples, see Riddell, “The Development of Section 1,” 130. It is likely, as one of the Journal's reviewers pointed out, that the politics of “symbolism” and the more concrete politics of institutional design were interrelated.
117 Recent cases involving doctor-assisted suicide, same-sex benefits, rights for the hearing-impaired, Aboriginal rights and others suggest that the Charter decisions will continue to deal with important policy areas. Moreover, recent figures show that Charter cases are rising as a proportion of the Supreme Court's docket (26 per cent from 1993 to 1997 compared to 18 per cent for 1982 to 1992) and that the Court remains at least moderately activist (32 per cent success rate for Charter claimants between 1993 and 1997). We thank Jim Kelly for these updated statistics.
118 See Lusztig, Michael, “Constitutional Paralysis: Why Canadian Constitutional Initiatives Are Doomed to Fail,” this Journal 27 (1994), 747–771.