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The Oxford Handbook of the Canadian Constitution edited by Oliver, Peter; Macklem, Patrick; Des Rosiers, Nathalie (19th October 2017)

Part VI Constitutional Theory, C Key Debates in Constitutional Theory, Ch.46 The Politics of Constitutional Law: A Critical Approach

Allan Hutchinson

From: The Oxford Handbook of the Canadian Constitution

Edited By: Peter Oliver, Patrick Macklem, Nathalie Des Rosiers

After almost 25 years of jurisprudence under the Canadian Charter of Rights and Freedoms, many of the fears expressed by critics of the Charter have come to pass—judicial review under the Charter of Rights and Freedoms operates as an institutional device to curb more than advance democratic politics and to entrench more than challenge a conservative ideology. The Charter is indeed a potent political weapon, but one that has been and continues to be used to benefit vested interests in society and to debilitate further an already imperfect democratic process of government. For such critics, whether or not that was the intention of its proponents and drafters is beside the point. Indeed, despite some of the best intentions of the ‘Charter-party’, the courts have not delivered on the touted democratic promise of the Charter. This chapter canvasses different critical challenges to the Charter.

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