Judicial Activism in Canada

Some crank was insisting that judicial activism didn't exist in Canada despite the last living signer of the Charter of Rights and Freedoms pointing out that liberals were hijacking it. He claimed that the federal government couldn't "change or alter the charter without all the provinces agreeing to it" and told me to get an education. He then asserted that judges couldn't change the constitution and that I should read a book, then spewed some irrelevant word salad about the notwithstanding clause not being able to override certain rights and called me uneducated again and regurgitating "Facebook memes and what your (sic) spoon fed" and ranted about the notwithstanding clause hijacking the charter 15 times and each time being a "conservative provincial government" and ended up by proclaiming I was "a hypocrite and have zero clue what your talking about".

So besides fact checking his nonsense (e.g. in 1988, the Liberal government in Quebec invoked the Notwithstanding clause to push through Bill 178), I read a book and quoted it back to him (just the conclusion - I doubted he'd read all of it):

"The Charter does not so much guarantee rights as give judges the power to make policy by choosing among competing interpretations of broadly worded provisions. Judges often deny that they make policy, insisting that they are simply applying the Charter, and thus implementing established legal policy...

Judicial policymaking requires more than interpretive discretion, how- ever. The traditional barriers that restrict access to the courts, and thus limit the scope of the courts' policy review powers, must also be removed. The classic adjudication-of-disputes function of courts places many such restric- tions on both litigants and courts: the rules of standing, mootness, inter- vener (third-party) participation, and others. Step by step, these have been removed by the Supreme Court. The result is that many policy decisions that offend well organized interest groups can now be directly challenged. In a dazzling exercise of self-empowerment, the Supreme Court has trans- formed itself from an adjudicator of disputes to a constitutional oracle that is able and willing to pronounce on the validity of a broad range of public policies. Interpretive discretion and an oracular courtroom — these are two of the chief building blocks of Canada's Charter revolution...

Relatively little of the Charter revolution can be explained by textually mandated change. Despite a few textual innovations in the Charter, Canadians did not go to bed on April 17,1982 with a substantially new set of rights and freedoms... The fact that the Charter revolution is more a judicial than a legal revolution is evident in the many cases that brought
about dramatic legal change without any textual warrant for such change.

For example, nowhere does the Charter explicitly give suspects the right to remain silent during pre-trial investigation. Indeed, civil libertarians' requests to place this right in the Charter were rejected by the framers. This did not stop the Supreme Court from reading in such a right as a necessary corollary of both the Charter's right to counsel and its requirement of "fundamental justice." Nor did it stop the Court from extending the Canadian version of this right to blood-sample and lineup evidence gathered in the absence of counsel, something that not even the American version requires.

The fate of many Bill-of-Rights precedents provides a particularly dramatic example of legal transformation without textual warrant. While the Charter clearly overruled a few Bill-of-Rights precedents, such as Hogan and Lavell, in most cases it did not. While the Charter adds freedom of conscience to the Bill of Rights guarantee of freedom of religion, there is no indication that this change was intended to alter the judicial approach to Sunday-closing legislation. Yet in one of its earliest Charter decisions, the Supreme Court declared the Lord's Day Act unconstitutional, notwithstanding its own Bill-of-Rights precedent that this law did not violate religious freedom. Similarly, the right-to-counsel provisions in both documents are identical except for the Charter's addition of the requirement to be informed of that right. This addition surely does not explain why in 1980 the Supreme Court ruled that the right to counsel did not apply to breathalyzer stops under the Bill but in 1985 ruled that it does under the Charter.

Even where clear textual changes exist, the legal transformations undertaken in their name are often anything but obvious. As noted earlier, the Charter does explicitly provide for the exclusion of evidence if it has been "obtained in a manner that infringed or denied" Charter rights. However, unlike the American rule, which tended toward automatic exclusion, the new Canadian exclusionary rule was explicitly conditional. Only if a judge deemed that "its admission would bring the administration of justice into disrepute" was evidence to be excluded. During the framing process, the government defended this new wording on the grounds that it would allow exclusion only in extreme, and therefore rare, circumstances.

In the hands of the Supreme Court, however, exclusion has become any- thing but rare. In a series of rulings, the most important of which is R. v. Collins, the Supreme Court has progressively lowered the threshold for exclusion of evidence. Given this low threshold, the Court has chosen to exclude evidence 45 per cent of the time; when the evidence takes the form of confessions or other incriminating statements, the exclusion rate jumps to 60 per cent.

Critics claim that the Court has "produced [an exclusionary] rule which bears little resemblance to the text of the section." Even those who applaud this development concede that "neither the rigour of the exclusionary rule nor its extension ... were anticipated by the framers of the Charter. Both are due to the Court's willingness to give its provisions a purposive interpretation." By 1996 Crown prosecutors had become so frustrated with the judges' frequent exclusion of reliable evidence, including involuntary police line-up identification and blood samples, that the attorney-general of Canada asked the Supreme Court to formally overrule the Collins precedent. The Court not only refused, but extended the list of prohibited forms of self-incrimination to include involuntary DNA samples.

The equality rights provision of the Charter — section 15 — provides a second example of how judicial innovations have gone well beyond those mandated by the text. As noted above, the framers expanded the traditional wording of the right to force judges to scrutinize the substance of laws as well as their application and administration. However, the opening words of section 15 refer to these expanded rights as belonging to "every individual." Despite such textual clarity, the Supreme Court has interpreted equality rights in a manner that extends them mainly to members of so-called disadvantaged groups. As Anthony Peacock has observed, the Court's interpretation of section 15 has transformed the Charter from a "citizens' constitution" to a "victims' constitution."...

While the courts have occasionally used the Charter to protect existing practice against legislative innovation, they have often used it to initiate new policy themselves. In effect, the Supreme Court, inspired by its academic chroniclers, has inverted the traditional understanding of constitutionalism and judicial review as conserving forces, and transformed them into instruments of social reform. Rather than serving as a prudent brake on political change, the judiciary has become a catalyst for change.
If traditional understanding cannot explain the Charter revolution, can original intent do so? Where the text does not clearly require a policy innovation, in other words, might the framers nevertheless have intended that innovation? It seems improbable. Because the questions that arise under the Charter are contentious, second-level questions, about which no consensus exists, it is unlikely that the framers would have come down clearly on one side or the other. To have done so, moreover, would arguably have been inappropriate. The relative permanence and loftiness of constitutional law, one might think, should be used to enshrine principles of deep consensus, not to settle ongoing matters of reasonable disagreement. If the framers had nevertheless intended to settle a highly contested issue, wouldn't they have been absolutely clear about it in the text, rather than leaving it to the discretion of judges? One cannot escape the conclusion that when the text is unclear, judicial policy innovation undertaken in its name cannot be justified in terms of the original intent of the framers.

This conclusion is borne out when one actually looks for evidence of original intent on some of the more contentious questions that have been answered by the courts...

We have already noted, for example, that the Court ran counter to the expectations of many of the framers when it created a pre-trial right to silence for criminal suspects and operated the exclusionary rule in a manner that makes exclusion of evidence the rule rather than the exception. The same is true of Henry Morgentaler's successful Charter challenge to the abortion provisions of the Criminal Code. During the framing process, the Trudeau government rejected numerous petitions from both pro-choice and pro-life groups to entrench their respective positions in the Charter. There was strong evidence that influential framers intended to leave abortion entirely to the regular political process, beyond the scope of judicial review. This evidence was cited by the two dissenting judges in Morgentaler, who argued vigorously in favour of a hands-off approach by the Court. Not surprisingly, the five-judge majority in Morgentaler did not appeal to original intent to justify their activism; indeed, they ignored the issue of original intent altogether.

Neither can the Court invoke the intention of the framers to support its policy innovations in the area of aboriginal rights. In the 1982 Constitution Act, section 35 declares that "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and confirmed." (Section 35 is technically "outside" of the Charter, but as a declaration of the special rights of Canada's most salient racial minority — rights that are enforceable in the courts — it has become an important part of the Charter revolution.) In 1981 there was no consensus on what practical meaning "aboriginal rights" might have. Provincial premiers, led by Peter Lougheed of Alberta (himself part Native), prudently wished to limit the recognition of aboriginal and treaty rights to those in effect at the time. They demanded that the Government amend the wording by adding the qualifier "existing." The prevailing understanding of this wording affirmed previously enacted extinguishments of aboriginal rights but protected against any future attempts to extinguish such rights by ordinary legislation. The restrictive intent of this qualification was so clear that three of the four major Canadian aboriginal groups opposed it. Indeed, the National Indian Brotherhood declared April 17 (the day the Constitution Act was proclaimed) "a day of mourning" and said that any Indian participating in the celebration would be committing a "treasonous act against the Indian nations and their citizens."

Nevertheless, the Supreme Court effectively removed this explicit limita- tion by announcing an unprecedented and generous definition of "existing" in its 1990 Sparrow decision. According to the Court, any aboriginal right, such as fishing for food, that has not been legally "extinguished" is deemed to still be "an existing aboriginal right." So far, so good. But the Court then set out such strict rules for determining the extinguishment of an aboriginal right that it found that the aboriginal right to fish for food in the Fraser River was not nullified despite almost 100 years of government regulation. The judges justified their new invention by declaring that section 35 invokes "the honour of the Crown" and thus imposes a "fiduciary obligation" on all government dealing with natives with the courts to judge whether this duty has been met.

Sparrow is to the aboriginal rights movement what Morgentaler is to the pro- choice movement. The effect of Sparrow has been described as "a virtual revolution in consciousness ... a sea change in Canadian law ... kick-started to a large degree by the courts." With allies like this in the courts, it is hardly surprising that Native leaders demanded that the so-called "inherent right to aboriginal self-government" in the 1992 Charlottetown Accord be justiciable; that is, that it be ultimately enforced by the courts.

The issue of gay rights provides another example of the disjunction between framers' intent and judicial policymaking. During the period of Chartermaking, the Trudeau government and the Parliamentary Committee on the Constitution rejected repeated requests by gay rights activists to insert protection for sexual orientation in the Charter. As with the abortion issue, the lack of any societal consensus on these issues counselled against addressing them in the Charter. Trudeau's advisors feared that anticipated public controversy might swamp their entire package of constitutional reform. As recently as 1992, sexual orientation was not included in the Charlottetown Accord, despite symbolic mention of all the other Charter groups. Nevertheless, in its 1995 Egan ruling the Supreme Court added sexual orientation to the list of prohibited grounds of discrimination in section 15...

It is exceedingly difficult to explain judicial policy innovations in terms of the substantive intent of the framers. Understanding this difficulty, the Supreme Court itself rejected substantive intent as a significant standard of interpretation early in its Charter jurisprudence in the British Columbia Motor Vehicle Reference, the very case in which Justice Lamer embraced the general intent to confer policymaking power on the courts...

Such evidence did not deter Justice Lamer. Characterizing indications of substantive intent as "inherently unreliable" and "nearly impossible of proof," Lamer declared that, "it would be erroneous to give these materials anything but minimal weight." If the Court bound itself to substantive intent, he warned, the Charter's rights and freedoms would "in effect become frozen in time to the moment of adoption, with little or no possibil- ity of growth and adjustment to changing societal needs." The preferred alternative, Lamer concluded, is to approach the Charter as "a living tree ... [capable] of growth and adjustment over time...

Notice that Justice Lamer associates original intent with frozen concepts and treats both as hostile to the flexibility of a living tree. In fact, constitutionalism only makes sense if frozen concepts can somehow coexist with flexibility and adaptability. Certainly, the whole point of writing a constitution is to freeze certain concepts for the long-term future, to entrench them, and thus make them hard to change. At the same time, no constitution can actually govern the future except as a living tree that is capable of growth and adjustment over time...

Modern proponents of the living tree metaphor, such as Justice Lamer, want more than the flexibility of applying existing rights to new facts; they want the freedom to create new rights and then apply them to old facts...

In Canada, the Supreme Court has created a new right against self-incrimination for criminal defendants lucky enough to get a retrial because of procedural irregularities in their first trial. Traditionally, the right against self-incrimination, which had been legislatively protected prior to the Charter, was understood to protect witnesses against self-incriminating state- ments made in testimony against someone else, but not to protect the accused himself against incriminating statements made under cross examination at a previous trial on the same charge. The Court, however, expanded the right against self-incrimination to cover the latter situation. It did so over the objection of Justice Mclntyre, who accused the majority of adopting an interpretation of the Charter that was "not dictated by its language," and that abandoned "long-accepted and sound principles of evidence."

Clearly, the Canadian Supreme Court has adopted the radical version of the living tree metaphor. Although the more modest version allows for flexibility and adaptation over time, it is obviously too restrictive for our judges. They want the flexibility to create new rights, not just the flexibility to adapt existing concepts to new facts...

Sometimes, of course, constitutional law does stand in the way of the legislative development of new policies for new circumstances, and in such cases the living tree metaphor can liberate the current generation from the constraints of the past. But when this happens, the metaphor supports judi- cial deference to legislative problem-solving, not judicial activism. For example, when courts in the 1920s and 1930s read both the Canadian and American constitutions as preventing the establishment of the welfare state, the living tree metaphor was invoked to free legislatures from this conservative judicial activism.

Indeed, it was precisely to liberate legislative and governmental policy innovation from judicially imposed constraints that the living tree analogy was first developed. At the outset, in other words, the living tree metaphor was a technique of judicial interpretation that allowed legislators to develop new policies to meet new social and economic conditions. As applied to the Charter, however, it encourages judges to develop new policies to meet new social and economic conditions... It is surely ironic that a doctrine that began its career as a justification for legislative discretion has been transformed into a bulwark of judicial discretion.

Interestingly, although the Canadian Supreme Court prefers the discretion-enhancing living tree metaphor, it has not completely scrapped the notion of substantive original intent. Thus, when the Court struck down the education provisions of Quebec's Official Language Act (Bill 101) — the Charter ruling that has most infuriated Quebec nationalists and fuelled our ongoing national unity crisis — the judges did not hesitate to justify their decision with an appeal to original intent...

Similarly, in Chantal Daigle's famous 1989 challenge to an injunction preventing her abortion, the Supreme Court appealed to framers' intent to justify its ruling in favour of Daigle...

The Court was probably correct on this issue, but the dissenters in the Morgentaler case, decided only a year earlier, had made the same point. "The Charter is entirely silent on the point of abortion," Justice Mclntyre had written, and the legislative history made it clear that this omission was intentional. In other words, if the framers had intended to set policy for the highly contentious issue of abortion, they would not have left the matter to "happenstance." Yet, as we have seen, the five judges who ruled in favour of Morgentaler were completely silent on the issue of original intent. In effect, the majority in Daigle used the interpretive methods of the minority in Morgentaler. Why did the Court treat framers' intent as decisive when dealing with the rights of the unborn, but as completely irrelevant when dealing with the rights of the mother?

One cannot escape the conclusion that the Supreme Court has adopted an entirely unprincipled approach to the question of original intent, subordinating it to the question of desired policy result. If the judges can find evidence of original intent that supports their policy predilections, they will embrace it; if original intent would obstruct the desired policy, they ignore or reject it. Far from being a constraint on judicial discretion, original intent has itself become a matter of judicial discretion...

As the Supreme Court downplayed substantive original intent in its early Charter jurisprudence, it enthusiastically embraced purposive analysis as a way of justifying its policy innovations...

In sum, none of the defences against the charge of judicial discretion and policymaking work. The truly fundamental issues about which the text is clear simply do not generate court cases, and if they did, judges would be unable to settle them. Of the secondary issues that do arise for judicial determination, a handful is indeed settled by the Charter's text, but they are too few to account for the Charter revolution. As for the extra-textual standards that might be used to justify the interpretation of ambiguous text, the judges themselves have rejected traditional understanding and substantive original intent. Original intent in a more general sense is used to portray the constitution as a living tree of such wondrous power that it can transform itself from one species into another. When called upon to mask the wide open discretion that flows from this radical form of the living tree metaphor, judges resort to a transparent sleight of hand known as purposive analysis. When all is said and done, the reality of judicial discretion cannot be evaded. It is judges who drive the Charter, and not vice-versa.

The attempt to deny or hide this truth can lead to a certain mendacity in judicial decisionmaking. In other words, to the extent that judges labour to camouflage their discretionary choices as the inescapable commands of the Charter, their overt reasons for deciding as they do may not be their real reasons. Consider the revelations provided in an interview given by Chief Justice Lamer on the fifteenth anniversary of the Charter in 1997. Lamer sought to defend what he admitted was one of the Supreme Court's most controversial Charter decisions, the Morgentaler abortion ruling. While claiming that he was "personally" against abortion, he added that he also believed that, "I should not impose upon others my personal beliefs." What then was the basis for his decision? Instead of pointing to a section of the Charter or some other conventional source of legal authority, Lamer invoked public opinion. Arguing that Canadians were split about 50-50 on the issue of abortion, he said "you should not make a crime out of something that does not have the large support of the community— Who am I to tell 50 per cent of the population that they are criminals?"

For all the talk of living trees and purposive analysis, what Justice Lamer is really up to, it appears, is surveying public opinion and ensuring that public policy has "the large support of the community." Presumably, this is the kind of thing he had in mind when he said in a 1999 interview that in some of its controversial rulings, the Court was "just keeping in sync with society." Even if we accepted this as a legitimate judicial role, we might wish that Lamer would get his facts straight. Canadian public opinion toward abortion had not changed significantly since Parliament's 1969 abortion reform law and a plurality of Canadians have always supported the kind of policy compromise the 1969 law represented.

Even if Lamer had had his facts straight, there would be reason to question this view of the judicial function. Will the Court invalidate all policy that does not enjoy the support of at least 50 per cent of the population? Under an electoral system in which the party that forms the government in Ottawa routinely receives less than 45 per cent of the popular vote (in 1997 the Chretien Liberals were re-elected with only 38 per cent), this would be a lot of legislation. More to the point, where in the Charter are judges directed to base their decisions on second-hand personal assessments of public opinion? Politicians are entitled to make such assessments — and to get them wrong — because we can "throw the rascals out." Judges are appointed for life precisely in order to insulate them from public opinion. Apparently these problems did not occur to the Chief Justice.

At this point we must take note of a certain schizophrenia among judges on the matter of policymaking discretion. Although judges strive mightily to make their judgments appear to flow inescapably from the Charter, they sometimes admit their discretionary policymaking role in more informal settings off the bench. Thus, the late Justice John Sopinka once admitted to a reporter that "when ... deciding a Charter case, the court is in a sense legislating." Under similar circumstances, Chief Justice Lamer has said that judging laws under the Charter, "especially when one has to look at Section I ... is asking us to make essentially what used to be a political call."

A recent study of Canadian appeal court judges by Greene et al uncovered similarly frank acknowledgments by the judges of their new role under the Charter. Four out of five Supreme Court judges interviewed agreed that the Charter had given the Court a "greater" law-making role. The comparable figure for other appeal court judges was 50 per cent. The authors concluded:

It was almost certainly the case prior to the Charter that nearly all Canadian judges resisted a lawmaking role for the courts, and many denied its possibility altogether. Instead they espoused the legal positivist school of thought that good judges merely interpret the law. It is striking how quickly and completely this traditional view has faded: all but two appellate court judges now admit to having at least some lawmaking role.

When thus confronting the reality of judicial discretion, defenders of judicial power shift ground. The discretion conferred on judges by the Charter is really nothing new, they now insist. Judges have always had a similar discretion in developing the common law and interpreting ambigu- ously worded legislation. At the constitutional level, moreover, Canadian judges have necessarily exercised some discretion in applying the law of federalism. In this view, the Charter simply adds to a long tradition of judicial policymaking. There is nothing particularly new, and certainly nothing revolutionary about it. As Chief Justice Lamer put it in a 1999 interview, the Court "hasn't become activist under my stewardship, it has always been activist."

It is certainly true that policymaking discretion is inherent in the interpretive enterprise. Judicial policymaking, as we have ourselves argued many times, is quite unavoidable. But legislatures can overrule judicial interpretations of the common law or legislation much more easily than they can overrule Charter rulings, the section 33 override clause to the contrary notwithstanding...

While it is true, in other words, that judicial discretion under the Charter is just one example of unavoidable judicial discretion, it is disingenuous to say that there is nothing new or different about it. Recall Chief Justice Lamer's comment that, with the advent of the Charter, the courts have been "drawn into the political arena to a degree unknown prior to 1982." Surely this would not have been the case if there was really nothing new going on. In fact, not only does the Charter provide broader scope for judicial policymaking, but the judges' embrace of the living tree and purposive analysis has significantly enhanced their policymaking potential. The sheer scope of judicial policy involvement under the Charter is certainly new, as are such innovations as judges rewriting legislation themselves rather than simply striking it down and allowing legislatures to decide how (or whether) to rewrite it. Indeed, as the next section shows, the innovations discussed thus far do not exhaust the institutional retooling undertaken by judges in the service of greater policy influence.

If newly created judicial standards are to have widespread effect on public policies, they must apply well beyond the confines of the particular case before the court. Thus, encouraged and applauded by the advocacy scholar- ship of Court Party academics, the Supreme Court has transformed the judiciary from an adjudicative institution, whose primary purpose is to settle concrete disputes between individuals or between individuals and the state, into an oracle of the constitution, whose primary purpose is to solve social problems by issuing broad declarations of constitutional policy. Accompanying the substantive revolution described above, in other words, has been an equally important procedural revolution. The Court has swept aside traditional common law rules that restricted access to the courts and limited the scope of judicial influence.

Traditionally, the defining characteristic of courts was their dispute adjudication function...

The Supreme Court of Canada has abandoned this view. It now sees itself as the authoritative oracle of the constitution, whose main job is to develop constitutional standards for society as a whole, rather than just for the litigants before it. The establishment of constitutional policy now comes first, the concrete dispute second. Indeed, with the important exception of criminal cases involving legal rights, the individual litigant is vanishing in Charter litigation. Corporations bring cases, and for policy charged cases, interest groups are increasingly prominent carriers of Charter litigation, if not as litigants, then as financial backers or interveners.

The Supreme Court has expedited interest group use of litigation, and thus its own policy-review role, by eliminating two of the three most significant barriers to access to the courts: standing and mootness. (The third barrier, costs, has been removed by government subsidies of Charter litigation through the federal Court Challenges Program and provincial legal aid programs.)...

In Big M Drug Mart, the Court struck down the Lord's Day Act as a violation of freedom of con- science despite the fact that the litigant challenging the law, a corporation, could not have a religious conscience. In Andrews the Court responded to broad issues of equality jurisprudence raised by LEAF and other interveners, issues that did not address the immediate issue before the Court. In K. v. Smith, the Court overturned a mandatory seven-year minimum sentence for importing illegal drugs even though everyone agreed that Smith, the litigant, deserved at least seven years. The Court is quite willing to issue broad declarations of constitutional policy even when there is no bona fide legal dispute before it that clearly implicates the policy questions it wishes to address. Disputes, the traditional stock in trade of courts, are now merely a sufficient and no longer a necessary condition for judicial intervention in public policy. As Lorraine Weinrib approvingly observes, courts in Canada are no longer restricted to addressing "constitutional questions within legal disputes." They now enjoy the power of "abstract constitutional review," which affords "wider opportunities to initiate litigation and greater public involvement." In other words, the Supreme Court is no longer a court, but an overtly political censor, an oracle ready to second-guess disputable political judgments whenever it sees the need.

The Court has further empowered itself by changing the status of its own obiter dicta. Literally, "words spoken in passing," obiter dicta are those portions of a judgment that are outside the reasons — the ratio decidendi — that actually determine the outcome of a case. They are asides, or digressions. In common law jurisdictions, the obiter dicta of appeal courts have never been con- sidered binding on lower courts. In Canada, the Supreme Court changed this in a 1980 decision in which it ruled that its own judicially considered obiter have the force of law... As Baar notes, "The binding force of judicially considered dicta in Canada gives its Supreme Court much more leverage than its American counterpart."...

The Charter provides the occasion for judicial policymaking, but the document itself is not the most important explanation for that policymaking. Judges themselves have chosen to treat the Charter as granting them open-ended policymaking discretion. They do not always admit their discretion; indeed, they often try to camouflage it. But their attempts to do so cannot withstand close inspection and are contradicted by the judges' own, more frank off-the-bench observations.

In addition, the Supreme Court has multiplied the opportunities for judicial policymaking by substantially redesigning itself— changing its rules of evidence, relevance, standing, mootness, and intervener status — from a constitutional adjudicator to a constitutional oracle. This institutional retooling, combined with the new sophistication of Canadian interest groups in using litigation, means that few major government policy initiatives are likely to escape a Charter challenge. Judicial intervention in the policymaking process is no longer ad hoc and sporadic, dependent upon the fortuitous collision of individual interests and government policy; it has become systematic and continuous. The Supreme Court now functions more like a de facto third chamber of the legislature than a court. The nine Supreme Court justices are now positioned to have more influence on how Canada is governed than are all of the parliamentarians who sit outside of cabinet."

--- The Charter Revolution and the Court Party by F.L. Morton and Rainer Knopff (2000)

I wonder what the authors would have to say about the constitutional right to bike lanes or for homeless people to consume drugs in public