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Post-Charter Legal Education: Does Anyone Teach Law Anymore?

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Post-Charter Legal Education: Does Anyone Teach Law Anymore? POST-CHARTER LEGAL EDUCATION: DOES ANYONE TEACH LAW ANYMORE? Roderick A. Macdonald How has the Charter changed legal education in Canada over the last quarter-century? Does anyone teach law anymore, in the way it used to be taught? Or is the teaching of law increasingly driven by the rights culture of the Charter, and the Charter precedents created in cases from the lower courts all the way to the Supreme Court? On the 25th anniversary of the Charter, McGill law professor Rod Macdonald offers what he terms “25 brief commentaries on post-Charter legal education.” For each of these “factoids,” he states “what I perceive to be a significant institutional, social, judicial or legal cultural change. Then I elaborate briefly upon how I perceive it to have affected law teaching.” He begins with an important argument, that “the historical substance of constitutional law has been progressively displaced by a preoccupation with the Charter.” En quoi la Charte des droits et libertés a-t-elle modifié l’éducation juridique au Canada depuis un quart de siècle ? Enseigne-t-on toujours le droit comme autrefois ou cet enseignement est-il de plus en plus marqué par la culture des droits et les précédents créés en vertu de la Charte dans des causes jugées à tous les niveaux, des tribunaux inférieurs à la Cour suprême ? En ce 25e anniversaire de la Charte des droits et libertés, Rod Macdonald, professeur de droit à l’Université McGill, propose « 25 brefs commentaires sur l’éducation juridique depuis l’adoption de la Charte ». Dans chacun d’eux, il décrit ce qu’il considère comme « un changement pertinent » et les répercussions qu’il a entraînées sur l’enseignement. Selon lui, « la substance historique du droit constitutionnel a été progressivement absorbée par la Charte des droits et libertés ». n 1975, at a conference celebrating the 100th anniversary last, published contribution to Charter scholarship. To date I’ve of the establishment of the Supreme Court of Canada, my resisted the temptation to revisit schedule B to the Canada Act I colleague Stephen Scott was asked what he would recom- 1982 (UK), although in other constitutional texts I have skirt- mend as an appropriate commemoration of the event. ed its frontiers. Admittedly, there have been many times when Without missing a beat he replied: “Restore appeals to the frustration in the classroom has led me to add another para- Privy Council.” graph to the apocryphal article I’ve been mentally composing Regrettably, I have no witty remark like “Amend the in fits and starts since then. As yet I’m undecided as to whether Preamble to replace the Supremacy of God with the this virtual parting shot will be entitled — evoking the memo- Supremacy of the Chief Justice” as a response to the ques- ry of the barons at Runnymede in 1215, and in contrast to their tion I’ve undertaken to address on the Charter’s 25th efforts — Parva Carta, or perhaps more charitably, Media Carta. anniversary. In fact, I’m a bit embarrassed by the request to Here, I have a different objective — namely, to consider consider how the Charter has changed legal education, for in what ways teaching in law faculties has changed over the it implicitly brings home to me the uncomfortable fact that past quarter-century. In doing so I shall, of course, indirectly I am one of a shrinking cohort of Canadian law professors examine various changes to Canadian legal culture generally: — those who were actually in the ranks prior to 1982. (1) how law, and especially constitutional law, may have I recall that shortly after Canada’s purported passage from changed; (2) how politics may have changed; (3) how the a state of nature to a state of grace on April 17, 1982, I was practice of law may have changed; (4) how judging may have asked to participate in a Symposium Issue of the Supreme Court changed; (5) how legal scholarship may have changed; and Law Review. My short essay, I vowed, would be my first, and (6) how law teaching and legal research in precincts other POLICY OPTIONS 75 FEBRUARY 2007 Roderick A. Macdonald than law faculties — for example, in precipitated any of the changes in legal styled as “Constitutional Guarantees.” In political science, economics, sociology, education that I note here. Absent a care- the 1977 first edition of Canadian philosophy, socio-legal studies, public ful empirical and multivariate regression Constitutional Law Peter Hogg allocated 29 administration and policy studies departments — may Few are the constitutional law teachers today who do not have changed. Nonetheless, sacrifice their teaching of history, politics, institutions, practices, my focus is on law faculties, conventions and federalism on the altar of the Charter. and the object of inquiry is legal pedagogy. How do law teachers analysis I hesitate to make causal claims, of 466 pages to “Civil Liberties.” Today, imagine their role? How do they per- although it is apparent that some of the the classic casebook treatment, Canadian form it? What implicit messages do changes I signal are more closely con- Constitutional Law (3rd edition), devotes they convey to their students through nected to the advent of the Charter than almost 60 percent of its 1,300 pages to their teaching, their research and the others. In this (perhaps false) modesty I “Rights” — with only 40 of those pages on institutions and processes they esteem? take my distance from those preoccu- “Rights” not dealing with the Charter, pied with the document who believe while the latest loose-leaf of Hogg’s treatise efore presenting my observations, that the parentage of all significant consecrates over 40 percent of its pages to B I’d like to enter three caveats. One changes to governance in Canada since “Civil Liberties” — all but 25 of which relates to the occasion for this text, 1982 — for better or for worse — can be concern the Charter. Few are the constitu- one to the nature of the claims I shall attributed to the Charter. Again, I return tional law teachers today who do not sac- be making and the third to the scope to this naive conception of the relation- rifice their teaching of history, politics, and purpose of this essay. ship between law and social change at institutions, practices, conventions and In deference to the anniversary we the end of this essay. federalism on the altar of the Charter. are commemorating, I have organized A third caution is stylistic. This is the reflections that follow as 25 brief not a law review article. There are no 2. Sections 91-101 and 133 of the commentaries on post-Charter legal edu- footnotes. I have tried to avoid weasel Constitution Act, 1867 have been de- cation. The very fact that it is 25 (and not words. I mean deliberately to be emphasized as structural reflections of 19, 22 or 27) years of Charter dispensa- provocative. After all, whether I’m the Canadian political community. tion we are observing reveals much about right is not that important. What real- Until the late 1970s, considerable effort the mystical commitments that we asso- ly matters is to reflect on the scope and in constitutional law teaching focused ciate with the document. Like the scale of these purported changes and on how the then British North America ancient Greeks who thought the key to to assess their impact. Act, 1867 sought to construct a federa- the universe lay in mathematical rela- What follow are 25 post-Charter tion not just of existing colonial political tionships, in 21st century Canada we pedagogical factoids. First I state what units, but of peoples and communities. choose our celebratory moments on I perceive to be a significant institu- The language of two founding peoples or purely formal criteria — imagining not tional, social, judicial or legal cultural of the Constitution as a “compact” only that 25 is a more significant number change. Then I elaborate briefly upon between two nations acknowledged the than 24 or 26, but also that the mere how I perceive it to have affected law centrality of ethnic, cultural, linguistic coming into force of the Charter in 1982 teaching. and religious diversity to the definition was the most salient substantive event. of the Canadian state. The key compo- Could we not also imagine artifacts such 1. The historical substance of constitu- nents of identity were nurtured through as the Canadian Bill of Rights, the tional law has been progressively dis- institutional arrangements such as the Victoria Charter, the Quebec Charter of placed by a preoccupation with the Senate, an upper house in Quebec, the Human Rights and Freedoms, the Charter. When Albert Abel published the attribution of marriage and divorce to Patriation Reference, the Meech Lake 900-page 4th edition of Bora Laskin’s lead- federal jurisdiction and a plethora of Accord, the PEI Judges Reference, the ing casebook Canadian Constitutional Law administrative mechanisms guarantee- Charlottetown Accord, the Secession in 1973, he left out the chapter on civil lib- ing political participation to minority (or Reference or the Anti-Terrorism Act (and erties that Laskin included in the 3rd edi- to use the expression of the day — dis- the dates associated therewith) as equally tion on the grounds that the subject was sentient) communities. Today, the con- transformative constitutional moments? not really constitutional law. The editor stitutional protection of social diversity I pick up on this obsession with the was obliged — in the guise of a revised 4th is conceived as being primarily about Charter as artifact later. edition two years later — to add a chapter anti-majoritarian constraints upon state of 87 pages on the subject prepared by action, rather than about the specific y second caveat is methodologi- Bora’s son, John I.
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