The Charter as an Independent Variable: Rethinking Epp’s Rights Revolution

Roozbeh (Rudy) B. Baker

Abstract

In 1982 Canada undertook to enshrine civil liberties protections within its newly patriated Constitution. The resulting document, the Canadian Charter of Rights and Freedoms, signaled a drastic shift in the attitudes of Canadian elites in regards to theories of governance and rights protection. Since 1982, and the promulgation of the Charter, the Supreme Court of Canada greatly expand the scope and substance of civil liberties in Canada through its broad judicial interpretation of the Charter. Two theories have emerged assessing the impact of the Charter on the institutional behavior of the Supreme Court of Canada. Most commentators have pinned this shift towards the fact that the Charter constitutionally entrenched civil liberties, thereby giving the Supreme Court the legitimacy and cover to dramatically expand and enforce said rights. To this point, political scientist Charles Epp has developed an intriguing alternative. The main thrust of this theory is to argue that the Charter was the end result, not the catalyst, of the expansion of civil liberties by the Supreme Court of Canada. Through both a quantitative and qualitative analysis, this Article will present a model that tests the validity of both of the competing theories regarding the origins of Canada’s “rights revolution” post-1982.