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THIS ARTICLE ASSESSES THE IMPACT OF THE CHARTER OF RIGHTS AND FREEDOMS ON THE CANADIAN POLITICAL SYSTEM. UNLIKE SOME COMMENTATORS WHO HAVE MINIMIZED THE EFFECT OF THE CHARTER, THE AUTHOR FINDS THAT THE CHARTER IS INDUCING SIGNIFICANT AND PERMANENT CHANGES IN THE CONDUCT OF CANADIAN POLITICS. CANADIAN JUDGES HAVE SHED THEIR PRE-CHARTER STYLE OF DEFERENCE AND SELF-RESTRAINT, AND ARE PLAYING A BOLDER AND MORE INFLUENTIAL ROLE IN THE GOVERNING PROCESS. CHARTER DECISIONS ARE REMOLDING THE CANADIAN CRIMINAL LAW PROCESS ALONG THE LINES OF THE "DUE PROCESS" MODEL AND AWAY FROM THE "CRIME CONTROL" MODEL OF THE PRE-CHARTER ERA. THE CHARTER HAS ALSO BEGUN TO CHANGE THE WAY THE CANADIAN POLITICAL SYSTEM OPERATES. INTEREST GROUPS HAVE RESPONDED BY MAKING GREATER USE OF CHARTER CONSTITUTIONAL LITIGATION AS A TACTIC TO PURSUE POLICY OBJECTIVES. LAW-MAKING AREAS ONCE SOLELY THE PREROGATIVE OF PROVINCIAL GOVERNMENTS ARE NOW BEING THREATENED WITH UNIFORM NATIONAL STANDARDS LAID DOWN BY THE SUPREME COURT IN THE COURSE OF CHARTER DECISIONS. POLITICAL EXECUTIVES ARE USING THE REFERENCE PROCEDURE TO PASS CHARTER ISSUES ON TO THE COURTS IN ORDER TO AVOID DEALING WITH POLITICAL "HOT POTATOES" SUCH AS ABORTION AND MINORITY LANGUAGE EDUCATION. IN SUM, THE PREDICTED "JUDICIALIZATION OF POLITICS" IS WELL UNDER WAY.

IT IS WELL KNOWN THAT THE UNITED STATES SUPREME COURT HAS A POLICYMAKING ROLE. BUT IT IS NOT CLEAR THAT IT HAS THE APPROPRIATE COMPETENCE FOR MAKING POLICY CHOICES. IN THE FOLLOWING EXAMINATION OF ITS SEXDISCRIMINATION EQUAL PROTECTION DECISIONS BETWEEN 1971 AND 1981, PROFESSOR MORTON FINDS THAT THE COURT HAS TENDED TO ABSTRACT THE SEX-DISCRIMINATION ISSUE OUT OF ITS NORMAL LEGISLATIVE CONTEXT OF FAMILY SUPPORT. THE COURT HAS ALLOWED A RATHER NARROW CONCERN WITH INDIVIDUAL RIGHTS TO DIRECT ITS INQUIRY AND ITS USE OF SOCIAL SCIENCE DATA HAS LACKED DISCRIMINATION.

The North West Upgrader (NWU) project illustrates the risks of government-led efforts to diversify Alberta's economy. What began as a low-risk, low-cost project to encourage domestic bitumen upgrading has morphed into a multi-billion dollar boondoggle with high risks for Alberta taxpayers. Originally, the Government of Alberta (GOA) intended to collect bitumen from producers in lieu of royalties and sell it to provincial upgraders, adding value to the commodity and creating jobs and revenues in Alberta. The private sector was to build and finance the new upgraders, as well as assume the market risks of low margins. The 2008 financial collapse effectively killed that plan. With just one prospect (NWU) remaining, the Stelmach government decided to be more than the middleman. The GOA committed to retain ownership of the bitumen up to the point of sale, pay NWU a toll for the processing, and then sell the upgraded product. Under a new "take or pay" arrangement, the GOA assumed liabilities estimated at $19 billion over the 30-year contract with NWU, as well as the market risk of having to sell the upgraded product at below costs. As four different premiers and six different energy ministers cycled through Edmonton, construction costs soared to over $8 billion. The original $6.5 billion cap on the GOA's liability for construction costs disappeared, and the GOA—and by extension, Alberta taxpayers— are now on the hook for $26 billion in processing payments — the equivalent of $63 per barrel. Falling oil prices are further undermining the prospects for the investment to break even. Written from a rare insider's perspective, this paper analyzes the lack of effective government oversight and due diligence surrounding the North West Upgrade. Rather than being an exception, NWU fits the larger and longer pattern of failed "forced-growth" diversification initiatives in Alberta and other provinces. Alberta politicians should think long and hard before succumbing to the next version of the "refine it where you mine it" diversification siren song.

In the Senate Reform Reference of 2014, the Supreme Court of Canada declared the Harper government's proposed reforms to the Canadian Senate unconstitutional. The court ruled that the Federal Government could not legislate non-binding, consultative elections for selecting senators, nor legislate term limits for senators without the consent of at least seven of the 10 provinces. It also ruled that abolishing the Senate would require the unanimous consent of all 10 provinces. The court's ruling is widely understood to have put an end to the Senate reform movement of the past three decades and to have constitutionally entrenched the Senate status quo. My analysis criticizes the court for failing to play a constructive role in facilitating the political reform of an institution that has ceased to serve any useful political purpose (other than patronage) and for unnecessarily condemning Canadians to endure this dysfunctional second chamber for at least another generation. In earlier analogous cases of political deadlock and constitutional ambiguity— the Patriation Reference of 1981 and the Quebec Secession Reference of 1997—the court exercised "bold statecraft [if] questionable jurisprudence" to craft compromise rulings that facilitated subsequent resolutions by elected governments. But not in this case. The court could have easily reached a more constructive conclusion following its own "living tree" approach to constitutional interpretation. The court ignored its own "foundational constitutional principles" of democracy and federalism—values that would be enhanced by provincial Senate elections. Indeed, the court has now given greater constitutional support for secession referendums in Quebec than it has for democratically elected senators. I suggest that there is still an exit strategy for the Harper government out of this judicially created dead end: simply turn the appointment of future senators over to provincial premiers, and let the dynamics of partisan provincial politics push the future selection of senators toward democratic elections.

Frontmatter -- CONTENTS -- PREFACE -- LIST OF ABBREVIATIONS -- One: Introduction -- Two: Judges and the Charter Revolution -- Three: The Court Party -- Four: The State Connection -- Five: The Jurocracy -- Six: Power Knowledge: The Supreme Court as the Vanguard of the Intelligentsia -- Seven: What's Wrong with the Charter Revolution and the Court Party? -- NOTES -- LIST OF CASES CITED -- SELECT BIBLIOGRAPHY -- INDEX

Former Alberta premier Peter Lougheed is celebrated for his defence of the province and Western Canada during the energy wars of the 1970s, and deservedly so. Prime Minister Pierre Trudeau was a formidable opponent. He was able and willing to use the full arsenal of federal powers to redirect soaring western energy revenues away from Alberta to Ottawa. For those of us in Western Canada, it is unpleasant to imagine what the outcome of this struggle would have been if a lesser man than Peter Lougheed had been at Alberta's helm. But there is another aspect of the Lougheed legacy that is less remembered because it is less celebrated—also deservedly so. These were Lougheed's ambitious economic diversification projects. Between 1973 and 1993 (when Ralph Klein became premier), the Lougheed-Getty "forced-growth" economic diversification projects are conservatively estimated to have cost Albertans $2.2 billion. While former premier Don Getty got most the blame for these losses (as many occurred during his watch), most of these programs began earlier. Lougheed's push for government-led diversification of the Alberta economy was a policy hallmark of his 1971 electoral breakthrough, and marked a sharp break from three decades of Social Credit laissez-faire policies. The Lougheed-Getty diversification fiascos are of more than just historical interest. While the subsequent Progressive Conservative (PC) regime of Premier Ralph Klein (1993–2006) followed an explicit philosophy of "government is not in the business of business," the more recent Stelmach (2006–11) and Redford (2011-14) governments have not. Both have embraced government-sponsored "value-added" and diversification initiatives, including the North West Redwater Partnership upgrader and two new endowments to provide "funding for social and cultural innovation, and agricultural innovation."† As Alberta's fifth premier in the past nine years, Jim Prentice, takes the helm and tries to restore some stability to Alberta's public finances, it merits revisiting the Lougheed-Getty experience for lessons learned. Our read of their record cautions against going down the same road again. While we identify several successes (e.g., Syncrude, Alberta Energy Company, and the ethane-based petrochemical industry), these were mostly in the hydrocarbon energy sector, and so contributed little to diversifying Alberta's economy. Our analysis identifies the largest dollar losses (the "Dirty Dozen"), several of which suggest that failure to control costs is endemic to government-led projects. Last but not least, the sheer number and diversity of government-funded projects reflects an unhealthy culture of corporate cronyism. With billions of dollars sitting in the newly created Alberta Heritage Savings Trust Fund earmarked for "diversification" and "capital projects," the temptation to spend became irresistible. The Heritage Fund, rather than serving its original purpose of a long-term "rainy-day account," became a giant slush fund for ministers' pet projects. The result is that, in real dollars, the Heritage Savings Trust Fund has a lower net worth in 2015 than it did in 1987. By the time Klein won the leadership of the PCs in 1993, his predecessors had racked up over $23 billion in net debt. Klein is widely celebrated by some (and criticized by others) for the harsh budget cuts he made to eliminate the structural deficit he inherited. Less well known is that the Klein team also terminated almost all the Lougheed-Getty diversification and stimulus programs. In their stead, the Klein governments—under the leadership of treasurers Jim Dinning and Stockwell Day—pursued a diversification policy based on macroeconomics: making Alberta the most taxcompetitive jurisdiction in Canada. This "build-it-and-they-will-come" approach was intended to attract both financial and human capital. This approach has enjoyed modest success thus far, as witnessed in the growth of the financial services sector and the relocation of many corporate head offices to Calgary. It is clearly a lower-risk path to sustained prosperity than the ill-fated, government-led "forced-growth" initiatives of the Lougheed-Getty era.