Roach, "The Judicial, Legislative and Executive Roles in Enforcing the Constitution: Three Manitoba Stories"

Kent Roach has posted "The Judicial, Legislative and Executive Roles in Enforcing the Constitution: Three Manitoba Stories" on SSRN. The essay is forthcoming in Canada in the World: Comparative Perspectives on the Canadian Constitution, edited by Richard Albert and David R. Cameron (Cambridge University Press).

Abstract:

The comparative strengths and weaknesses of judicial, executive and legislative enforcement of the Constitution are examined through a case study of attempts to enforce the rights of the overlapping Francophones, Roman Catholics and the Métis minorities in Manitoba. In these case studies, the courts were generally the more reliable protector of minority rights than legislatures or the executive. At the same time, there was not always compliance with judicial decisions and courts often produced remedies that were less effective than had there been co-operation with the executive, the legislature and civil society. In particular, legislative remedies both with respect to restoring funding to Catholic schools and ensuring French language services from the government would have been more effective than judicial remedies. They were, however, blocked by filibusters by legislators hostile to the minority rights in question. The 1983 legislative obstruction forced the Supreme Court of Canada in 1985 to pioneer the innovative remedy of a suspended declaration of invalidity. This remedy allows both courts and legislatures to participate in devising remedies. It is now used frequently in Canada and is enshrined in the 1996 South African Constitution.