The Judiciary in Trudeau's Constitutional Vision: Intellectual Trajectory and the Origins of the Charter

Abstract

This chapter inquires into the place of judicial review under a bill of rights in the thinking of P.E. Trudeau, the principal architect of the Canadian Charter of Rights and Freedoms. Trudeau had studied and taught constitutional law (for two short years) and worked on the constitutional dossier throughout much of his intellectual, political, and bureaucratic career. One might think that the judicial review was a subject that would have preoccupied him throughout his career. I argue, instead, that the judiciary inhabited a marginal place in his constitutional thinking. It was only during debates over the Meech Lake and Charlottetown Accord proposals for constitutional reform that Trudeau took up judicial review in a more systematic fashion. Even on these occasions, this appeared to be for opportunistic reasons: it served the strategic ends of undermining public support for these constitutional initiatives. It is not that Trudeau had no interest in the judicial function in a constitutional democracy. There is much evidence that he had substantial knowledge about and followed developments in constitutional law. My claim is a narrower one: that he did not take an intellectual interest in judicial review in the context of the constitutional reform efforts leading up to patriation of the Canadian constitution. The object of this chapter is to fill a gap in the literature by undertaking a sort of mini-intellectual biography focusing on Trudeau’s thinking about judicial review under an entrenched rights document.