The Effect of the Charter of Rights on Canadian Federalism

Abstract

Canadian experience under the 1982 of Rights contradicts the orthodox understanding ofjudicial review as a decentralizing institution that performs a checking or blockingfunction. politics in Canada suggest that in a federal system, judicial review can also enhance values and policies favored by the national government at the expense of the constituent units. Rather than weakening the policy capabilities of the federal government, the Canadian has enhanced its influence. The has undermined the policy autonomy of the provinces by giving a policy veto to the Supreme Court, an institution that is more receptive to the policy preferences of national elites, especially in the area of language policy. This has aggravated French-English relations, because of the high incidence of judicial nullifications of Quebec's restrictive language policies. Elite attempts to compensate Quebec by way of new constitutional amendments (e.g., the Meech Lake Accord) have been thwarted by the emergence of an influential coalition of postmaterialist social interests, which use litigation to promote their nonterritorial policy objectives. These Charter Canadians have opposed constitutional amendments that would weaken the or the Court. This coalition has broken Canadian governments' historical monopoly on the constitutional amending process. By stimulating the democratization of constitutional politics, the has weakened the institutions of consociational democracy and elite accommodation. This has diminished the influence of all the provinces, but especially Quebec, thereby contributing to the recent rise in secessionist tendencies within Quebec.