1 For a sampling of this literature, see Russell, Peter, “The Effect of a Charter of Rights on the Policy-Making Role of the Canadian Courts,” Canadian Public Administration 25 (1982), 1–33CrossRefGoogle Scholar; Greene, Ian, The Charter of Rights (Toronto: Lorimer, 1989)Google Scholar; Knopff, Rainer and Morton, F. L., Charter Politics (Scarborough: Nelson, 1992)Google Scholar; Hiebert, Janet, Limiting Rights: The Dilemma of Judicial Review (Montreal: McGill-Queen's University Press, 1996)Google Scholar; Manfredi, Christopher P., Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (Toronto: McClelland and Stewart, 1993)Google Scholar; Morton, F. L., ed., Law, Politics, and the Judicial Process in Canada (2nd ed.; Calgary: University of Calgary Press, 1992)Google Scholar; Heard, Andrew, “The Charter in the Supreme Court: The Importance of Which Judges Hear an Appeal,” this Journal 24 (1991), 289–308Google Scholar; Eisenberg, Avigail, “The Politics of Individual and Group Difference in Canadian Jurisprudence,” this Journal 27 (1994), 3–22Google Scholar; Manfredi, Christopher P., “ ‘Appropriate and Just in the Circumstances’: Public Policy and the Enforcement of Rights under the Canadian Charter of Rights and Freedoms,” this Journal 29 (1994), 435–464Google Scholar; and Sigurdson, Richard, “Left- and Right-Wing Charter-phobia in Canada: A Critique of the Critics,” International Journal of Canadian Studies 5–6 (1993), 95–117Google Scholar.

2 Mcllwain, Charles, Constitutionalism, Ancient and Modern (Ithaca: Cornell University Press, 1947), 21–22Google Scholar.

3 Douglas Young, quoted in Greenspon, Edward, “Former Minister, Ex-MP Heads for Ottawa as Lobbyist,” The Globe and Mail (Toronto), July 4, 1997Google Scholar.

4 Cairns, Alan, “The Embedded State,” in Banting, Keith, ed., State and Society: Canada in Comparative Perspective, Research Studies for the Royal Commission on the Economic Union and Development Prospects for Canada, Vol. 31 (Toronto: University of Toronto Press for Supply and Services Canada, 1986), 55Google Scholar.

5 Cory, Justice Peter in R. v. Wholesale Travel Croup (1991), 84Google Scholar D.L.R. (4th) 161 (S.C.C.), 207. See also Bakan, Joel et al. , “Developments in Constitutional Law: The 1993–94 Term,” Supreme Court Law Review 6 (1995), 73Google Scholar.

6 Mcllwain, Constitutionalism, Ancient and Modern; also Vincent, Andrew, Theories of the State (Oxford: Basil Blackwell, 1987), 77ff.Google Scholar; Schochet, Gordon J., “Introduction: Constitutionalism, Liberalism, and the Study of Politics,” in Pennock, J. Roland and Chapman, John W., eds., Constitutionalism (New York: New York University Press, 1979), 34Google Scholar; Smith, Rogers, Liberalism and American Constitutional Law (Cambridge: Harvard University Press, 1985)Google Scholar; and Castiglione, Dario, “The Political Theory of the Constitution,” Political Studies 44 (1990), 422–423Google Scholar.

7 LaForest, Gérard, “The Canadian Charter of Rights and Freedoms: An Overview,” Canadian Bar Review 61 (1983), 20Google Scholar.

8 See, for example, Knopff and Morton, Charter Politics; Manfredi, Judicial Power and the Charter; and Peacock, Anthony A., ed., Rethinking the Constitution: Perspectives on Canadian Constitutional Reform, Interpretation, and Theory (Don Mills: Oxford University Press, 1996)Google Scholar.

9 There are ways in which criminal law can be understood in terms other than liberal constitutionalism. For instance, the Charter imposes several positive duties upon police officers and courts. Upon arrest or detention, police officers must inform persons of certain rights. Courts have declared that if Charter rights to a fair trial are to be protected then the accused must be informed of access to legal representation. It is foreseeable that courts will interpret the Charter to require that lawyers be available to an accused or detained person, thus imposing affirmative duties to act upon the state.

10 Hunter v. Southam, [1984] 2 S.C.R. 145.

11 Ibid., 155–56.

12 R.v. Oakes, (1986), 26 D.L.R. (4th) 200 (S.C.C.).

13 See Beatty, David, Talking Heads and the Supremes: The Canadian Production of the Constitutional Review (Toronto: Carswell, 1990)Google Scholar; Beatty, David, “A Conservative's Court: The Politicization of Law,” University of Toronto Law Journal 41 (1991), 147–163CrossRefGoogle Scholar; and Beatty, David, onstitutional Law in Theory and Practice (Toronto: University of Toronto Press, 1995)CrossRefGoogle Scholar. While the structure of the test is liberal constitutionalist, the set of values said by the Supreme Court to be implicit in the phrase “free and democratic” is another matter.

14 Castiglione, “The Political Theory of the Constitution,” 423.

15 Hogg, Peter, “Comparison of the Canadian Charter of Rights and Freedoms with the Canadian Bill of Rights,” in Tarnopolsky, Walter and Beaudoin, Gerald, eds., The Canadian Charter of Rights and Freedoms: Commentary (Toronto: Carswell, 1982), 7Google Scholar.

16 Hogg, Peter, Constitutional Law of Canada (3rd ed.; Toronto: Carswell, 1992), 841–842Google Scholar.

17 See Hogg, “Comparison of the Canadian Charter with the Bill of Rights”; Swinton, Katherine, “Application of the Canadian Charter of Rights and Freedoms (ss. 30, 31, 32),” in Tarnopolsky, and Beaudoin, , eds., The Canadian Charter of Rights and Freedoms, 41–59Google Scholar; LaForest, A., McLellan, Anne and Elman, Bruce P., “To Whom Does the Charter Apply? Some Recent Cases on Section 32,” Alberta Law Review 24 (1986), 361–375Google Scholar; and Hogg, Constitutional Law of Canada, chap. 34.

18 For a thorough account of the attack on legal liberalism in the American legal academy, see Kalman, Laura, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996)Google Scholar. Such a history of the Canadian legal academy remains to be written, but some insights may be gained from Morton, F. L. and Knopff, Rainer, “The Supreme Court as the Vanguard of the Intelligentsia: The Charter Movement as Postmaterialist Politics,” in Ajzenstat, Janet, ed., Canadian Constitutionalism, 1791–1991 (Ottawa: Canadian Study of Parliament Group, 1992), 54–78Google Scholar; Morton, F. L., “The Charter Revolution and the Court Party,” Osgoode Hall Law Journal 30 (1992), 627–652Google Scholar; and Knopff, Rainer and Morton, F. L., “Canada's Court Party,” in Peacock, , ed., Rethinking the Constitution, 63–87Google Scholar.

19 “Postliberal” has been used by Lessard, Hester, “The Idea of the ‘Private’: A Discussion of State Action Doctrine and Separate Sphere Ideology,” Dalhousie Law Journal 10 (1986), 107–137Google Scholar, and by Devlin, Richard, “Introduction,” in Devlin, Richard, ed., Canadian Perspectives on Legal Theory (Toronto: Emond Montgomery Publications, 1991), 5Google Scholar. For a more philosophical treatment of postliberalism, see Gray, John, Post-Liberalism: Studies in Political Thought (London: Routledge, 1993)Google Scholar. His position is that one's preferences for a liberal society can no longer be founded on nature, contract or any other ahistorical construct.

20 Handler, Joel, “Postmodernism, Protest, and the New Social Movements,” Law & Society Review 26 (1992), 697–731CrossRefGoogle Scholar. In this article Handler criticizes postmodernism for failing to muster a progressive vision of institutional political action needed to produce progressive social transformation. The quietistic tendencies of postmodernism sound its death knell, he argues.

21 Kalman, The Strange Career of Legal Liberalism, and Brown v. Board of Education [347 US 483 (1954)].

22 Warren, Mark, “Liberal Constitutionalism as Ideology: Marx and Habermas,” Political Theory 17 (1989), 511–534CrossRefGoogle Scholar.

23 Hutchinson, Allan C., “Crits and Cricket: A Deconstructive Spin (Or Was It a Googly?),” in Devlin, , ed., Canadian Perspectives on Legal Theory, 181–206Google Scholar.

24 Sunstein, Cass R., The Partial Constitution (Cambridge: Harvard University Press, 1993)Google Scholar.

25 Tully, James, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995), 26CrossRefGoogle Scholar.

26 Ibid., 25–26.

27 Sunstein, The Partial Constitution.

28 Tully, Strange Multiplicity, 175.

29 Fiss, Owen M., “Why the State?” Harvard Law Review 100 (1986–1987), 781–794CrossRefGoogle Scholar. For a representative sampling of this view in the Canadian context, see Brodsky, Gwen and Day, Shelagh, Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back? (Ottawa: Canadian Advisory Council on the Status of Women, 1989), chap. 8Google Scholar; and Women's Legal Education and Action Fund, Equality and the Charter: Ten Years of Feminist Advocacy before the Supreme Court of Canada (Toronto: Emond Montgomery Publications, 1996)Google Scholar.

30 de Montigny, Yves, “Section 32 and Equality Rights,” in Bayefsky, Anne and Eberts, Mary, eds., Equality Rights and the Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985), 579Google Scholar.

31 Hutchinson, Allan C. and Petter, Andrew, “Private Rights/Public Wrongs: The Liberal Lie of the Charter,” University of Toronto Law Journal 38 (1988), 292CrossRefGoogle Scholar.

32 Mandel, Michael, The Charter of Rights and the Legalization of Politics in Canada (2nd ed.; Toronto: Thompson Educational Publishing, 1994), 84Google Scholar. See also MacDonald, R. A., “Postscript and Prelude–The Jurisprudence of the Charter: Eight Theses,” Supreme Court Law Review 4 (1982), 321–350Google Scholar; Etherington, Brian, “Notes of Cases: RWDSU v. Dolphin Delivery,” Canadian Bar Review 66 (1987), 818–838Google Scholar; and Lessard, “The Idea of the ‘Private.’ “

33 Manning, Morris, Rights, Freedoms, and the Courts: A Practical Analysis of the Constitution Act, 1982 (Toronto: Emond Montgomery Publications, 1982)Google Scholar; Gibson, Dale, “The Charter of Rights and the Private Sector,” Manitoba Law Review 12 (1982), 213–219Google Scholar, and “Distinguishing the Governors from the Governed: The Meaning of ‘Government” under Section 32(1) of the Charter,” Manitoba Law Review 13 (1983), 505–522Google Scholar. These commentators acknowledge that some Charter provisions bind only government—for example, sections 3–5, 33 and so on—but that these provisions should not and do not determine the general scope of Charter application.

34 De Montigny, “Section 32 and Equality Rights,” 589.

35 Ibid., 593.

36 Ibid., 594 (emphasis added).

37 Some commentators suggest that considerations of institutional capacity—whether the courts are actually fit to apply the constitution intelligently and expertly to the minutiae of “private” life—should govern questions of Charter application. For a discussion, see Kanter, Michael, “The Government Action Doctrine and the Public/Private Distinction: Searching for Private Action,” Queen's Law Journal 15 (1990), 33–63Google Scholar.

38 See, for example, Mandel, The Charter of Rights and the Legalization of Politics; and Hutchinson, Allan and Monahan, Patrick, “Democracy and the Rule of Law,” in Hutchinson, Allan and Monahan, Patrick, eds., The Rule of Law: Ideal or Ideology? (Toronto: Carswell, 1987), 97–123Google Scholar; and Monahan, Patrick, Politics and the Constitution: The Charter, Federalism, and the Supreme Court of Canada (Toronto: Carswell, 1987), chaps. 3–6Google Scholar. Anthony Arblaster admits that democratic principles should perhaps not apply to all forms of social organization but certainly to more than they do at present. See his Democracy (2nd ed.; Minneapolis: University of Minnesota Press, 1994)Google Scholar.

39 Bakan, Joel C., “Constitutional Interpretation and Social Change: You Can't Always Get What You Want (or What You Need),” in Devlin, ed., Canadian Perspectives on Legal Theory, 445–466Google Scholar. See also his Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997)Google Scholar.

40 Kanter, “Government Action Doctrine and the Public/Private Distinction.”

41 Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441.

42 RWDSU v. Dolphin Delivery (1986), 33 D.L.R. (4th) 174 (S.C.C.).

43 Ibid., 195.

44 Ibid., 196.

45 Ibid., 198.

46 While the reaction to the Charter application issue in Dolphin was nearly vitriolic, nary a peep was heard when the Court in Daigle v. Tremblay (1989), 63 D.L.R. (4th) 634 (S.C.C.) refused to apply the Charter to the Quebec Civil Code, notwithstanding the fact that the Code is legislation.

47 The Court did decide that section 2(b) of the Charter protected peaceful picketing as a form of expression. Such a finding was unnecessary to the disposition of the case, since it would arise only after the threshold application issue was settled in the union's favour. One suspects that the section 2 question was raised to blunt the otherwise negative impact of the decision on the labour movement.

48 Belobaba, Edward P., “The Charter of Rights and Private Litigation: The Dilemma of Dolphin Delivery,” in Finkelstein, Neil R. and Rogers, Brian MacLeod, eds., Charter Issues in Civil Cases (Toronto: Carswell, 1988), 29–46Google Scholar.

49 Rahey v. The Queen, [1987] 1 S.C.R. 588.

50 Ibid., 633.

51 B.C. Government Employees Union v. B.C. (A.G.) (1988), 53 D.L.R. (4th) 1 (S.C.C.), 22. See also, Slaight Communications Inc. v. Davidson (1989), 59 D.L.R. (4th) 416 (S.C.C.) and Young v. Young (1993), 18 C.R.R. (2d) 41 (S.C.C.) where the Court held that when legislation confers discretionary authority to courts or quasi-judicial boards, that authority must be exercised in a manner consistent with the Charter.

52 Respectively, R. v. Swain (1991), 63 C.C.C. (3d) 481 (S.C.C); Salituro v. The Queen (1991), 68 C.C.C. (3d) 289 (S.C.C); and Dagenais v. CBC (1994), 120 D.L.R. (4th) 12 (S.C.C).

53 Hill v. Church of Scientology of Toronto (1995), 126 D.L.R. (4th), 129 (S.C.C).

54 New York Times Co. v. Sullivan, 376 U.S. 254 (1964), 279–280.

55 Hill v. Scientology, 157.

56 Ibid., 189–90.

57 Macklem, Patrick, “Constitutional Ideologies,” Ottawa Law Review 20 (1988), 150Google Scholar.

58 R. v. Oakes (1986), 26 D.L.R. (4th) 200 (S.C.C.), 225.

59 McKinney v. University ofGuelph (1990), 2 C.R.R. (2d) 1 (S.C.C.). Other cases decided concurrently were Douglas/Kwantlen Faculty Association v. Douglas College (1990), 2 C.R.R. (2d) 157 (S.C.C.), which decided that a community college in British Columbia was caught by section 32; Harrison v. University of British Columbia (1990), 2 C.R.R. (2d) 193 (S.C.C.), which decided that the university was not caught by section 32; and Stoffman v. Vancouver General Hospital (1990), 2 C.R.R. (2d) 215 (S.C.C.), which held that the hospital's regulations respecting the age at which doctors can hold admitting privileges are beyond Charter's reach. Stoffman was applied in R. v. Dersch (1993), 18 C.R.R. (2d) 87 (S.C.C.) to the extent that a hospital was found not to be caught by section 32. However, the Court speculated that a doctor can be found to be acting in a government capacity when taking blood samples on order by police.

60 McKinney v. University of Guelph, 22–24.

61 Ibid., 94.

62 Lavigne v. OPSEU (1991), 81 D.L.R. (4th) 545 (S.C.C.), 564.

63 Ibid., 569.

64 Ibid., 618.

65 Ibid., 621.

66 Ibid., 622.

67 R. v. Carosella, [1997] 1 S.C.R. 80. See also R. v. O'Connor, [1995] 4 S.C.R. 411.

68 R. v. Carosella, 114 (emphasis in original).

69 Ibid. L'Heureux-Dube” wrote a strong dissent, among other things defending the Centre's policy and conduct. She was unwilling to find that the Charter was triggered here by way of a section 32 analysis, implicit or otherwise, of the Centre's governmental status. Instead she merely declared that the Charter was triggered by the fact of the prosecution itself (Ibid., 119).

70 Adler v. Ontario, [1996] 3 S.C.R. 609.

71 Ibid., 648.

72 Ibid., 702.

73 Ibid., 708.

74 Ibid., 657.

75 The Supreme Court will soon revisit the state action/inaction issue. In Vriend v. Alberta (1996), 132 D.L.R. (4th) 595, the issue before the Court of Appeal was whether the absence of a provision in Alberta's human rights legislation of a provision prohibiting discrimination on the basis of sexual orientation was a violation of Charter equality rights. A majority of the Court said no, basing its decision on the ground that the Charter can only be triggered by positive state action. The dissenting judge disagreed, arguing that “[t]his is a case where legislative silence indeed draws a distinction for the purposes of s. 15(1) of the Charter.” The decision is being appealed. The Supreme Court has already partially adopted the principle that state inaction can trigger Charter scrutiny. An underinclusive list of beneficiaries of a government programme can be found constitutionally suspect. SeeSchachter v. Canada (1992), 93 D.L.R. (4th), 1 (S.C.C.).

76 R. v. Morgentaler, [1988] 1 S.C.R. 30, 164.

77 McKinney v. University of Guelph, 92.

78 Andrews v. Law Society of Upper Canada (1989), 56 D.L.R. (4th) 1 (S.C.C.). Postliberal critics of the Supreme Court, however, argue that the Court has introduced a less substantive vision of equality rights into section 15 jurisprudence in the 1990s, confirming for them that liberalism is alive and well in the Supreme Court. See Lessard, Hester et al. , “Developments in Constitutional Law: The 1994–95 Term,” Supreme Court Law Review 7 (1996), 81–156Google Scholar.

79 Thomson Newspapers Ltd. v. Canada, [1990] 1 S.C.R. 425, 510; also see 535.

80 R. v. Wholesale Travel Group, 206.

81 See, for example, Knopff, Rainer and Morton, F. L., “Nation-Building and the Canadian Charter of Rights and Freedoms,” in Cairns, Alan and Williams, Cynthia, eds., Constitutionalism, Citizenship and Society in Canada, Research Studies for the Royal Commission on the Economic Union and Development Prospects for Canada, Vol. 33 (Toronto: University of Toronto Press for Supply and Services Canada, 1985), 133–182Google Scholar; and McRoberts, Kenneth, Misconceiving Canada: The Struggle for National Unity (Toronto: Oxford University Press, 1997)Google Scholar.