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Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms

Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms


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The introduction of the Canadian Charter of Rights and Freedoms in 1982 was accompanied by much fanfare and public debate. This book does not celebrate the Charter; rather it offers a critique by distinguished scholars of law and political science of its effect on democracy, judicial power, and the place of Quebec and Aboriginal peoples twenty-five years later. By employing diverse methodological approaches, contributors shift the focus of debate from the Charter’s appropriateness to its impact – for better or worse – on political institutions, public policy, and conceptions of citizenship in the Canadian federation.

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Product Details

ISBN-13: 9780774816755
Publisher: University of British Columbia Press
Publication date: 02/15/2010
Series: Law and Society Series
Pages: 320
Product dimensions: 5.80(w) x 8.80(h) x 0.90(d)
Age Range: 18 Years

About the Author

James B. Kelly is associate professor of political science at Concordia University. Christopher P. Manfredi is dean of arts and professor of political science at McGill University.

Table of Contents

Acknowledgments ix


1 Should We Cheer? Contested Constitutionalism and the Canadian Charter of Rights and Freedoms James B. Kelly Christopher P. Manfredi 3

Part 1 Governance and Institutions

2 Legalise This: The Chartering of Canadian Politics Andrew Petter 33

3 Rationalizing Judicial Power: The Mischief of Dialogue Theory Grant Huscroft 50

4 Courting Controversy: Strategic Judicial Decision Making Rainer Knopff Dennis Baker Sylvia LeRoy 66

5 Legislative Activism and Parliamentary Bills of Rights: Institutional Lessons for Canada James B. Kelly 86

6 Compromise and the Notwithstanding Clause: Why the Dominant Narrative Distorts Our Understanding Janet L. Hiebert 107

Part 2 Policy Making and the Courts

7 Judicializing Health Policy: Unexpected Lessons and an Inconvenient Truth Christopher P. Manfredi Antonia Maioni 129

8 National Security and the Charter Kent Roach 145

9 Canadian Language Rights: Liberties, Claims, and the National Conversation Graham Fraser 169

10 Explaining the Impact of Legal Mobilization and Judicial Decisions: Official Minority Language Education Rights outside Quebec Troy Riddell 187

11 Reference re Same-Sex Marriage: Making Sense of the Government's Litigation Strategy Matthew Hennigar 209

Part 3 Citizenship and Identity

12 Bills of Rights as Instruments of Nation Building in Multinational States: The Canadian Charter and Quebec Nationalism Sujit Choudhry 233

13 The Internal Exile of Quebecers in the Canada of the Charter Guy Laforest 251

14 The Road Not Taken: Aboriginal Rights after the Re-Imagining of the Canadian Constitutional Order Kiera L. Ladner Michael McCrossan 263


15 The Charter and Canadian Democracy Peter H. Russell 287

List of Contributors 307

Index 316

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