Legislating under the Charter
My new book, co-authored with Janet Hiebert and Anna Drake, is now available for purchase from University of Toronto Press (and other booksellers like Chapters Indigo and Amazon, etc.). This book is the product of years - indeed, entire careers - of research and thinking about institutional relationships under the Charter of Rights and Freedoms.
Some of the questions we ask, and try to answer, include: How do governments justify their policy decisions when those decisions implicate rights? How do parliamentarians deliberate when assessing legislation that may violate the Charter? What influence do “judicial norms” about the Charter have on the work of government and Parliament in relation to the legislative process? What role does the bureaucratic/legal advice to governments and Parliament play? And how do these processes affect concrete policy outcomes?
We examine these questions by taking the reader through the roles and responsibilities of the government (cabinet and prime minister), the bureaucracy (especially the department of justice lawyers involved in scrutinizing bills in development), specific rules (like the ministerial reporting obligation in the Department of Justice Act) and processes (the recent introduction of ‘Charter statements’ by the department of justice), backbench and opposition MPs, parliamentary committees, debate on the House and Senate floor, etc.
We then undertake case studies on criminal justice policy, the approval of safe consumption sites, sex work, and medical aid in dying to explore these issues in depth.
Finally, we offer a number of proposals for reform to improve transparency and scrutiny functions within the executive and Parliament for a more robust consideration of rights in the legislative process.
I’m very proud of this one, and am very much looking forward to feedback. The role of governments and Parliament in relation to the Charter has been understudied (although this book builds on important work by scholars like Janet and Jim Kelly), because most of the attention has been squarely on courts and questions around judicial power or “judicial activism”.
We explore the degree to which governments or Parliament exert independent thinking around rights, seek to protect rights, or even ‘push back’ against judicial decisions. Two (broad) conclusions we reach: 1) the dynamics around these institutional relationships are far more complex than often portrayed. 2) At the same time, however, I think readers will see we are ultimately quite critical of the performance of governments and Parliament generally, and I hope our reform ideas are considered by decision makers down the road.
This is my 7th book, my 3rd authored book, but the first one that I’ve ever co-authored, and I had the unique experience of co-authoring it not only with my former PhD supervisor (Janet) but also with my wife (Anna)! [It actually all went quite smoothly, thankfully]
Interested readers can take advantage - for the next couple of weeks only! - of a 25% discount by entering the code “Macfarlane25” upon checkout when ordering straight from the publisher.