Avenue and Ridley reviews The Last Act

The Last Act: Pierre Trudeau, the Gang of Eight and the Fight for Canada by Ron Graham, Alan Lane Canada, 323 pages, $34.00 (2011)

While 1867 is considered Canada's birth year, there is no doubt that 1982 is another watershed twelvemonth in the history of Canada. With the stroke of a pen, our country went from being a Dominion with a supreme parliament to a quasi-republic with a constitutionally entrenched Charter of Rights and Freedoms. Ron Graham’s The Last Act: Pierre Trudeau, the Gang of Eight and the Fight for Canada is a good place to start for anyone looking for a history of the genesis of Canada’s post-1982 constitution and is an interesting read for anyone with even a passing interest in Canadian public affairs.

Prior to 1982, Canada's principal constitutional statute was an act of Westminster, the British North America Act, 1867 (henceforth BNA Act) and contained everything from defence to hospitals to weights and measurements. Over time the BNA Act itself was amended and by 1949 it could be changed by the Canadian parliament, while still being rooted in London. This was problematic, of course, because between 1867 and 1982 Canada and the United Kingdom drifted apart. World Wars or legislation such as the Statute of Westminster, 1931, helped precipitate this, and Canada was still heir to important legal milestones such as the Quebec Act, 1774 or Magna Carta. Indeed, Canadian courts even weighed English common law judgments such as Davis Contractors v Fareham UDC [1956] or Hedley Byrne v Heller [1964] carefully too; but complete constitutional seperation was only a question of time.

Which is where Pierre Trudeau stepped in. Trudeau, an intellectual and university instructor before entering politics, not only wanted constitutional seperation from the United Kingdom, he wanted entrenched rights as well. Affected by the wave of human rights agreements sweeping the western world after 1945 and the heavy handed approach of Maurice Duplessis’ Union Nationale government in Quebec, Trudeau saw entrenched rights as an improvement upon Canada's pre-existing supreme parliament. In 1971 and 1978 efforts towards entrenchment were made, but it was only in the early 1980s after the Quebec Referendum that Trudeau turned his formidable acumen towards the effort. Prepared to move unilaterally, the Supreme Court of Canada’s Reference re a Resolution to amend the Constitution, [1981] reigned in the prime minister and it is subsequent negotiations with the provincial leaders that compose the bulk of this book.

Which itself is a positive contribution to the story and a welcome read for anyone wanting to brush up on the politics and laws of Canada. With Trudeau being such a prominent player, it is hard not to see him as the star, but other key actors: Peter Lougheed, Bill Davis, Roy Romano, Jean Chretien and Rene Leveque’s are given fair treatment as well. Unabashedly pro-Trudeau, it is not a scholarly work but nor does it try to be. Rather, it is a good presentation of this interesting episode of Canadian history in a welcoming and accessible way.

Avenue and Ridley reviews Mighty Judgment

Mighty Judgment: How the Supreme Court of Canada Runs Your Life by Phillip Slayton, Allen Lane Canada, 340 pages, $32.00 (2011)

In 1985, then Chief Justice of Canada Brian Dickson remarked that Canada had moved from a country of parliamentary supremacy to constitutional supremacy. He was speaking, of course, about the recently enacted Charter of Rights and Freedoms, and how this entrenched element of the constitution had drastically changed his country and its legal system. Mighty Judgment is account of how the twenty-nine justices of the Charter era have used these entrenched rights to significantly change Canadian society, and is a welcome read for anyone exploring Canada’s highest court and its role in contemporary Canada.

The text is divided into two parts. The first examines the court’s structure and, after an obligatory pre-Charter history, dives into a focused post-Charter analysis. The chapters are demarcated by areas of law, and examine notable cases including: R v Morgentaler, which involved the abortion debate; A.C. v Manitoba and Syndiate Northcrest v Amselem which dealt with religion and Vriend v Alberta which looked at sexual orientation and the Charter. Mr Slayton also cited the Quebec Succession reference and R v Grant and how the Charter has impacted criminal law. An exhaustive list of all cases is beyond the scope of this review, but they illustrate the point made by Mr Slayton – that the Supreme Court has made some incredibly important decisions due to the Charter – often while remaining in relative obscurity.

The second part of the book examines the composition of the court itself, and how the nine current judges* arrived at their jobs. It further discusses how language politics, religious background, province of origin and other uniquely Canadian qualifications find their way into the court’s composition. This is a valuable analysis, as it gives the reader an understanding of how important these people have become to Canada. In Mr Slayton’s words they are: “Nine people doing their best. Like any other group of equals working together to make a difficult decision, there will be crosswinds of competing ambitions, differences of opinion, and clashes of personality... The product of their labours and deliberations is generally good, but not always.”

The final chapter in Part II could stand as a third separate part and outlines some suggestions Mr Slayton believes would befit the judge selection process in the Charter age. This is of particular interest to Avenue and Ridley, as this blog has a great interest in other common law jurisdictions and what these jurisdictions can learn from each other. In this chapter, the selection methods used by Canada’s two most influential legal cousins – the largely apolitical method used by the United Kingdom and the overtly political method of the United States, are briefly examined. Mr Slayton concludes the American model is better but even a hybrid method would be acceptable.

The author pulls no punches when discussing the cases he cites, and uses a cross section of well-cited journalistic, political and legal sources when discussing the effects of the Charter. His argument for an American-style appointment process could have been expanded upon (this blogger remains unconvinced) but the fact that he is shedding light on this glaring public need is welcome, especially in light of recent attention the Harper government has given Senate appointments. Clearly reform of the Supreme Court appointment process deserves similar, if not greater scrutiny, in light of the importance of the Charter.

Upon completion of the book, this blogger immediately recalled Lord Sankey’s speech in British Coal v The King [1935], when it was remarked how the Imperial Parliament could “as a matter of abstract law”, repeal or disregarding a Canadian statute, but this has no relation to current realities. Mr Slayton’s book strikes a similar cord with its sound conclusion. Since 1982, the Charter has created a new reality in Canada and Mr Slayton has made a worthwhile contribution to the story of this. We would do well to incorporate his work into this study.

*In May 2011, Justices Ian Binnie and Louise Charron announced they will be retiring from the court effective August 30, leaving the door open for the Prime Minister to put his personal stamp on the Supreme Court. It also gives parliamentarians, government, the media and the Canadian public an opportunity to consider revisions to the appointment process.