The Politics of the Charter: The Illusive Promise of Constitutional Rights (review)

Andrew Petter describes himself as a 'progressive Charter sceptic' (171), a scholar and policymaker who believes that 'the Charter is a regressive political instrument more likely to hinder than to advance the interests of disadvantaged Canadians' (7). His engaging essays on the Charter fall into two groups, the first written before 1990, the second after 2005. In between, Petter served as an MLA in the British Columbia legislature and was responsible for several cabinet portfolios in the NDP governments of Mike Harcourt and Ujjal Dosanj. The first group of essays constitutes a vigorous left-wing critique of the Supreme Court of Canada's early decisions interpreting and applying the rights guaranteed by the Charter. The second group of essays restates Petter's critique of rights and responds to the claim that judicial review can be justified as part of a dialogue between the various branches of government. But near the end of the book, there is a surprising hint that Petter's experiences in government may have softened his sceptical views about the possibility and desirability of constitutional rights.

Petter's critique of Charter rights and their interpretation by the Supreme Court of Canada is expressed in at least three distinct and potentially incompatible arguments. First, in two papers co-authored with Allan Hutchinson, Petter argues that constitutional rights are impossible in principle. The Charter's liberal legalism is 'a failure' (92): it promises neutral, formal, and objective criteria for determining conflicts about rights and social values, but since the abstract liberal values embodied in the Charter provide no such criteria, judicial decision making under the Charter is arbitrary, subjective, and personal (83, 121). In the second group of papers, Petter restates this basic critique: 'none but a few true believers,' he says, can maintain that the early Charter cases 'did not require judges to make subjective judgments based on their personal moral values' (152; compare 174-6).

Second, Petter sometimes seems to claim that, even if right-based review is possible in principle, individuals ought not to have constitutional rights. This argument underpins his critique of one of the most significant early Charter cases. In the Motor Vehicle Reference, ¹ the Supreme Court of Canada held the principles of fundamental justice under s 7 of the Charter enabled courts to review statutes on grounds of both procedural fairness and substantive justice. The Court went on to recognize its first substantive principle of fundamental justice, holding that absolute liability in penal law offended the principles of fundamental justice. The Court thus effectively created a constitutional right not to be imprisoned for an offence without proof of fault. Petter objects: the individual right to insist on proof of fault before being imprisoned 'reflects a narrow and anachronistic view of the function of penal lawand of the relationship between individuals and the state' (66). It is, he argues, perfectly appropriate to impose absolute liability as a way of 'redefin[ing] the nature and scope of social responsibilities in an increasingly interdependent society,' particularly in the context of a regulated activity like driving a motor vehicle (67). Consistent with this critique of rights, both before (90) and after (213-4) his experience in government, Petter complains that individual Charter rights impede the state in its carrying out socially beneficial policies.

These two arguments amount to a claim that using individual rights as a basis for legal ordering is impossible or, in the alternative, undesirable. But some of Petter's criticisms of the Charter jurisprudence rest, at least implicitly, on a third argument: although individuals should have rights, for democratic and institutional reasons their guarantor should be the legislature itself rather than the judiciary. In this vein, Petter notes the Supreme Court of Canada's reluctance, in the early Charter cases, to recognize aspects of collective bargaining as Charter rights, while granting corporations Charter rights or allowing them to make Charter claims based on the Charter rights...