Author's first book lays down the law

allison martens

For political scientist James Kelly, it’s the first time that’s the charm.

Governing with the Charter, his first book, has been shortlisted for the Donner Prize, which recognizes outstanding contributions to public policy writing and research in Canada.

The 336-page volume, published last August by UBC Press, is one of five finalists for the eighth annual award, from a pool of 55 submissions.

In it, Kelly, the Graduate Program Director and an assistant professor in the Department of Political Science, examines how the relationship between the Supreme Court and Parliament has evolved since the introduction of the Canadian Charter of Rights and Freedoms in 1982.

Whether the courts or parliament should have the last word on constitutional issues in Canada remains a hot topic. In his recent election campaign, Prime Minister Stephen Harper said he believes lawmaking should be the exclusive domain of elected members of parliament, not appointed judges.

Kelly, who holds a PhD from McGill, rejects this idea that so-called “activist judges” are wresting power away from parliament. “The way we govern with the Charter here has actually led to greater executive supremacy within government. The imbalance is now between the executive and regular parliamentarians.”

The executive, which includes the prime minister and his cabinet, introduce up to 99 per cent of bills that are eventually passed by parliament, Kelly said. These are usually bills affecting federal public policy, over which it has exclusive jurisdiction.

“They draft their bills in the inner machinery of government. Most of our governments have been majorities,” which reduces the possibility of disagreement.

In addition, the justice department scrutinizes legislation before it is read to parliament to ensure that it is “Charter-proof”.

This practice shifts power to the executive and further reduces parliamentary debate, Kelly says, because either MPs trust that department blindly, or they don’t have the legal knowledge and resources to challenge it.

Kelly also studies bills of rights in Commonwealth countries from a comparative perspective. Though the Canadian document has been a model for many, most — such as Britain — do not allow their courts to strike down laws, only to declare them “inconsistent.”

“It seems they’re trying to ensure parliamentary supremacy,” Kelly said. “This ensures a parliamentary approach to human rights, unlike in Canada where the justice department is doing all the vetting.”

The appointment process for the Supreme Court was one of former prime minister Paul Martin’s first targets when he started his campaign to make government more transparent by correcting the so-called “democratic deficit.” In the last two years alone, three seats became open on the nine-seat bench.

Kelly said Martin should have looked in a mirror instead. “To correct this democratic deficit, I think it would have been more useful to make parliament more transparent as an institution, not necessarily the courts.”