Not a New Constitutional Court: The Canadian Charter, the Supreme Court and Quebec Nationalism

“Not a New Constitutional Court: The Canadian Charter, the Supreme Court and Quebec Nationalism” in P. Pasquino & F. Billi, eds., The Political Origins of Constitutional Courts: Italy, Germany, France, Poland, Canada, United Kingdom (Rome: Adriano Olivetti Foundation, 2009) 39-76.

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Why have political actors throughout the world adopted systems of judicial review that empower courts to assess legislation enacted by democratically elected legislatures for compliance with a constitutionally entrenched bill of rights? As Tom Ginsburg has argued, political actors have adopted systems of rights-based judicial review as a form of political insurance, to hedge a10-The-Political-Origins-of-Constitutional-Courts.pdfgainst the possibility of losing political power in the future. Ginsburg's thesis has substantive and institutional limbs. The substantive limb is the adoption of a constitutionally entrenched bill of rights to enable constitutional drafters to insure against the future loss of political power through rights-based adjudication, in challenges brought either by themselves or individuals, institutions or organizations with aligned interests. The institutional limb is the creation of a new constitutional court as part of a constitutional transition to enforce this bill of rights. Does the political insurance thesis fit the Canadian story? In this chapter, I argue that it does not. Canada adopted a constitutionally entrenched bill of rights, the Canadian Charter of Rights and Freedoms, in 1982. But the principal political objective behind the adoption of the Charter was not to insure against the potential loss of political power by threatened political elites, but rather, to combat sub-state nationalism in the province of Quebec, through the imposition of rights-based limits on the ability of Quebec to engage in linguistic nation-building, and through the creation of a pan-Canadian constitutional patriotism that would compete with, and eventually overwhelm Quebec nationalism. Ultimate responsibility for enforcing the Charter was vested not in a new constitutional court specifically created for that purpose, but in the existing Supreme Court of Canada. Prior to the entrenchment of the Charter, the Supreme Court had ultimate responsibility for enforcing Canada's federal division of powers. It was viewed by political and legal elites in Quebec as systematically favouring federal over provincial jurisdiction, and indeed, sided with the federal government against Quebec in important cases that challenged the adoption of the Charter itself and turned on the location of constituent power in the Canadian constitution. The decision to empower the Supreme Court to enforce the Charter should therefore be viewed through the lens of this Court's pre-existing place in the constitutional politics of Canadian federalism.