David Smith’s review of my book, The Politics of the Charter: The Illusive Promise of Constitutional Rights, does a good job of communicating his own preoccupations and views concerning the Canadian Charter of Rights and Freedoms. Unfortunately it does a less satisfactory job of explaining mine.
Smith, for example, wishes that I had spent time examining the attitudes of individual judges. Yet such analysis is superfluous to the thrust of my critique, which is aimed at understanding the underlying structures and ideological assumptions that drive Charter interpretation, and at evaluating arguments concerning its legitimacy.
In the same vein, he assumes that my criticism of the Charter is directed at the judiciary. This is not the case. While I seek to expose the values and attitudes that characterize the Canadian legal system and critically assess certain Charter cases, I have nothing but sympathy and respect for judges on whom Canadians have foisted the unenviable task of addressing problems, through the blunt instrument of litigation, that we have become unable or unwilling to resolve for ourselves through democratic means. Thus my main problem is not with judges, but with those who urge greater use of the Charter to fashion policies that should be made democratically, and with politicians who increasingly invoke it to avoid political responsibility.
Smith also appears to think that the Charter’s popularity answers concerns I express about the implications for democracy of placing ever more reliance upon courts to resolve contentious social issues. He has this precisely backwards. Such popularity serves to reinforce the extent to which Canadians have become content to forego hard-won political rights. It thus provides further evidence of the disturbing state of contemporary democracy.
I could go on, but rather than repeating here the various aspects of my thesis that Smith disregards, I suggest that those who would like to learn more about my analysis of the Charter and its political implications read the book for themselves.
