Parliamentary Bookshelf: Reviews.

• Author: Hooper, Tom

Adam M. Dodek, The Charter Debates: The Special Joint Committee on the Constitution, 1980-81, and the Making of the Canadian Charter of Rights and Freedoms.

In The Charter Debates, Adam M. Dodek has resurrected the forgotten history of the debates over the Canadian Charter of Rights and Freedoms. This book examines the activities of the Special Joint Committee of the Senate and House of Commons on the Constitution, 1980-81 (Joint Committee), which studied the proposed Charter for three months from November 1980 to February 1981. The Joint Committee held 106 meetings over 56 sitting days and spent 276.5 hours hearing from experts and witnesses representing various groups. According to Dodek, this was "the first time that ordinary Canadians became participants in constitutional change rather than mere observers or silent subjects of it." (4) This in turn legitimized the process and set a precedent for future constitutional questions. Dodek's main argument is that the deliberations of the Joint Committee matter. They matter not only to constitutional history, but they should also be considered by courts as legitimate sources of Charter interpretation.

Dodek argues that in the years following the adoption of the Charter, decisions by the Supreme Court of Canada dismissed this important part of Charter history. In the case of the BC Motor Vehicle Reference (1985), the Supreme Court severely limited the use of the minutes from the Joint Committee. In this case, the court decided that accepting the statements made in committee deliberations would in effect "freeze" the rights contained in Charter at the moment they were adopted. This "originalism" contrasted with the "living tree doctrine of constitutional interpretation," which allows for the rights in the Charter to grow and adapt over time. Dodek views this as a "false dichotomy" (11). The author is not suggesting an originalist view of the Charter. Rather, he argues the debates of the Joint Committee should inform the court in a similar manner as do philosophers, social scientists, or foreign case law.

The Charter Debates is organized in two parts. In part one, Dodek contextualizes the broader history of the Charter deliberations. Chapter one explores the history leading to the creation of the Joint Committee, including the 1968 policy paper, A Canadian Charter of Human Rights, the extensive consultative work of the Molgat-MacGuigan Committee, and the ill-fated but prescient Victoria Charter...