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Reviewed by:
  • Good Government? Good Citizens? Courts, Politics and Markets in a Changing Canada
  • Lorne Sossin
Good Government? Good Citizens? Courts, Politics and Markets in a Changing Canada W.A. Bogart Vancouver: UBC Press, 2005 Pp. 288$85.00 (cloth)

I Introduction

Something apparently has changed in Canada. People are turning to the market to protect "choice" and to the courts to protect "rights," and these trends are not only mutually reinforcing but, together, are undermining "politics." Indeed, the culmination of this sea change in Canadian society may be best illustrated in the Chaoulli v. Quebec decision, in which a slim majority of the Supreme Court held that it is a violation of an individual's constitutional rights not to permit him access to private health insurance.1 In other words, constitutional rights in the service of individual choice result in greater access to privately and unequally distributed goods and services. The rise of rights, the rise of individual choice, and the rise of the market combine to suggest that dramatic change is afoot in Canada.

William Bogart at once illustrates and laments this convergence in his lively study, Good Government? Good Citizens? Courts, Politics and Markets in a Changing Canada. Bogart is a versatile scholar of wide-ranging interests. This is a book aimed not just at lawyers or academics but at a broader audience. Its style and substance are accessible; the prose is lively, well paced, and peppered with relevant anecdotes from popular culture, politics, literature, and recent headline news.

This review discusses the book's central arguments and offers an alternative view of the turn to rights, the decline of legislative institutions, and the ascendancy of the discourse of choice. In my view, there are several dimensions to these phenomena, not just one, and ambivalence and tension, not simply convergence, characterize their relationship in Canada. My analysis is divided into three sections. First, I explore Bogart's arguments regarding the rise of rights in Canada in the Charter era. Second, I consider the argument that, in the face of growing judicial power and legitimacy, legislative institutions are in decline. Finally, I canvass the case studies raised by Bogart in support of his position. [End Page 721]

II Rights

On the question of rights, Bogart asks good questions. Why have Canadians embraced a rights culture that has so few roots in its constitutional history and structure (notable landmarks such as Roncarelli v. Duplessis2 aside)? Have the Charter and the rise of judicial power delivered for the progressive elements of society who turned to it with the aspiration of enfranchising the marginalized and disadvantaged elements of society?

Surprisingly, Bogart describes these questions far more than he attempts to resolve them. He maps out the proponents and critics of the "dialogue" theory of constitutional interaction between courts and legislatures, for example, without offering an alternative account of the relationship between judges and the other branches of government. Perhaps this is because a debate as to whether or not the dialogue theory is right cannot be resolved on empirical grounds; the data can be subject to any number of interpretations and reinterpretations.3 Whether you believe the courts and legislatures speak to one another, speak at one another, or silence one another becomes an article of faith more than a matter of persuasive argument based on agreed-upon evidence.

The irony of the focus on judicial-legislative relationships, in my view, is that the post-war period on which Bogart focuses has been characterized far more by the rise of the executive branch and the centralization of power in the hands of the executive.4 Executive power, in fact, explains at least an element both of judicial ascendancy and of legislative malaise. The patriation of the Constitution and the entrenchment of the Charter of Rights and Freedoms were initiatives of executive, not legislative, government. The entrenchment of the Charter was not a decision of the legislatures (and, indeed, when legislatures were left to put their imprimatur on constitutional compromise in Canada, the result was the disastrous end of the Meech Lake Accord in 1990). More than this, the executive branch appoints the judges and thereby plays a fundamental role in...

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