The revolution that never was: Charter litigation in the Canadian courts of appeal
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With the ratification of the Canadian Charter of Rights and Freedoms in 1982, scholars predicted that a “Charter revolution” would emerge whereby the courts would utilize the Charter as a mandate empowering them to extend judicial review into substantive policy areas. The expectation was that the courts would adopt a liberal, activist approach when reviewing cases involving rights protection under the Charter and that parliamentary supremacy would eventually be replaced by judicial or constitutional supremacy. However, research on the Canadian Supreme Court has demonstrated that these expectations have not come to fruition at the federal level. This dissertation extends the scope of the “Charter revolution” argument by assessing how Canada’s second highest courts, the provincial appeals courts, have interpreted the importance, scope, and substance of the Charter. In addition, because provincial human rights accords are also in operation within the provinces, this dissertation examines how these quasi-constitutional accords supplement the Charter and how the appeals courts have approached these particular rights protections. In an effort to offer a comprehensive overview of rights-based judicial decision making at the provincial level, the universe of decisions issued under the Charter and/or the human rights acts during 2000, 2005, and 2010 are analyzed for the 10 provincial appeals courts of Ontario, Québec, British Columbia, Alberta, Manitoba, Saskatchewan, New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador. In general, the dissertation finds little support that the “Charter revolution” is taking place within the appeals courts. When presented with a Charter claim, the appeals courts tend to issue decisions that are notably conservative and that are highly deferential to both the federal and provincial governments. A substantial degree of regional variation does exist, however, in regards to the ideological disposition of the appeals courts when addressing a Charter claim. Surprisingly enough, the Québec and British Columbia appeals court exhibited the most ‘liberal’ attitude when facing a Charter dispute while the Alberta and Ontario courts were substantially more conservative. The dissertation also finds that the provincial human rights accords do not significantly broaden civil rights and liberties litigation within the appeals courts as very few rights disputes are appealed from the human rights tribunals to the appeals courts. The exception is, again, the Québec appeals court as it is presented with far more human rights claims than its counterparts and is consistently more liberal in its human rights decisions than the other appeals courts. Statistical models of judicial decision making within the appeals courts regarding rights disputes under the Charter and/or the human rights accords indicate that ideology and place are the primary determinants of how the appeals courts decide rights-based cases.