Dialogue and Distrust: John Hart Ely and the Canadian Charter

Abstract

John Hart Ely’s process theory of judicial review has had an influence on constitutions across the globe. This article explores and evaluates Ely’s influence on the drafting and development of the 1982 Canadian Charter of Rights and Freedoms. The article first outlines the rudimentary elements of Ely’s theory of judicial review (II), then how Ely’s explicit influence on the development of Charter has mostly been limited to the context of section 15 equality rights (III). But Ely’s influence has been more extensive in the way scholars have sought to understand the Charter. The third section of this article shows how Ely has had an impact on Patrick Monahan’s theory of judicial review under the Charter, and in Rosalind Dixon’s process theory of dialogue. The article concludes by arguing that although Ely’s concerns remain relevant in the Canadian context, there are two reasons to be skeptical of using Ely’s theory to understanding Charter rights (IV): the first reason is that the Charter features substantive rights that do not seem to be reducible to protections for participation in the political process; the second reason is that process based dialogue theory appears to be insufficiently distrusting of courts.