Social movements and the expansion of judicial power: feminists and environmentalists in Canada (1970-1995)

This dissertation considers a dramatic transformation: the expansion of judicial power in Canada. Many believe that constitutional rights have unleashed a wave of revolutionary changes. According to their assessment, the Charter (1982) has elevated the prominence of judges, undermined deeply rooted conventions, and lured political adversaries into the courtroom. Others suggest that “post-materialists” are jeopardizing Canadian democracy by using the Charter to circumvent Parliament and the provincial legislatures. If this explanation is correct, members of the “court part” take their unpopular claims to courts because judges do not face the competing pressures of electoral politics. A rival interpretation insists that value change has preceded and produced institutional change. Post-materialists started to litigate during the early 1970s because they felt ignored and excluded by political Elites. These interests are fueling the process of judicialization by advocating a form of pluralism that requires the judicial review of political actors. I test these explanations by comparing two social movements as they move from one institutional context to another. Instead of relying on secondary sources and personal interviews, I developed the Court Challenges Database (1970–1995) and the National Survey on Strategic Choices (1995). The evidence is intriguing. The “court party thesis” is the weakest explanation because it presents a caricature of post-materialists. Most activists criticize the conventions of Canadian politics, but they are not using litigation to side-step the great representative institutions. Post-materialists form coalitions that target cabinet ministers, senior bureaucrats, and members of the Supreme Court because they understand the limits of legislative strategies and the dangers of judicial review. The “judicial pluralism” thesis is more compelling. Post-materialists continue to promote the principle of judicially enforced political accountability because they believe that “action-forcing provisions,” mandatory duties, and constitutional rights will make governments representative, responsible, and responsive. This pressure is gradually changing the shape of the Canadian state. The “Charter revolution thesis” is the strongest explanation because it shows us how social transformations can be accelerated, redirected, and even tamed by state structures. Feminists and environmentalists both express post-materialist values, but their attitudes, strategies, and chances of success are influenced by the presence or absence of legal rights, the character of statutory regimes, and the distribution of decision-making authority. The Charter revolution thesis has another remarkable strength: it can tell us why governments have treated post-materialists differently. Feminist managed to win impressive legal tools during the patriation round (1980–1981) because federal officials hoped that constitutional guarantees would tame the forces of regionalism and undermine Quebec nationalism. However, this nation-building imperative has worked against environmentalists since the “death” of the Meech Lake Accord (1990). The federal government does not want to generate a steady flow of territorial disputes by introducing rights that protect the natural environment.