Empirical Evidence Confirms Charter's Centralizing Effect on Canadian Federalism
A comprehensive new study has provided concrete data supporting long-standing arguments that Canada's Charter of Rights and Freedoms has been systematically eroding provincial authority and centralizing power in Ottawa. The research, conducted by the Macdonald Laurier Institute, analyzes over three decades of Supreme Court decisions to reveal troubling trends in Canadian constitutional development.
The Disguised Federal Veto
Four years ago, on the Charter's 40th anniversary, constitutional scholar Ted Morton described the document as "one of the worst bargains ever struck in the history of Canadian federalism." He argued it had become a disguised version of the old federal power of disallowance—a federal veto over provincial policies now exercised by the Supreme Court rather than by Cabinet. This perspective, once controversial in academic circles, now finds substantial support in empirical evidence.
Quebec governments have consistently recognized this dynamic, which explains why Quebec refused to ratify the 1982 Constitution Act and has regularly employed Section 33's notwithstanding clause to protect provincial policies from judicial override. While other provinces have been slower to acknowledge this centralizing effect, the data now speaks clearly to the structural imbalance.
Quantifying the Centralization Trend
The Macdonald Laurier Institute study examined all 205 Charter decisions rendered by the Supreme Court between 1984 and 2020. The findings reveal not only that centralization is inherent to the Charter's structure but that this tendency has intensified significantly in recent years.
The research demonstrates that the Court has become increasingly activist, striking down more laws in the most recent decade. However, the most striking finding concerns the disproportionate impact on provincial legislation. The proportion of provincial statutes invalidated has nearly tripled from the 1990s to the 2010s, jumping from 21 percent to 62 percent. During the same period, the invalidation rate for federal statutes increased by only 20 percent.
The Asymmetrical Impact of Judicial Review
The study clarifies a crucial distinction in how Charter decisions affect different levels of government. When the Supreme Court strikes down a federal statute, there is no decentralizing effect. Unlike decisions based on federalism grounds, Charter-based invalidations do not create jurisdictional openings for alternative provincial legislation. The new constitutional rule continues to be established in Ottawa, representing merely a horizontal transfer of power from Parliament to the Supreme Court.
In contrast, when provincial laws are invalidated, a vertical transfer of decision-making authority occurs—from provincial legislatures to the nine federally-appointed judges in Ottawa. As the study notes, "A policy that was previously provincially defined by provincial legislatures becomes nationally defined by a national judiciary." This creates a new policy status quo determined by a federal body that effectively renders similar laws in other provinces "de facto unconstitutional."
Implications for Canadian Federalism
The accumulating evidence suggests that the Charter has fundamentally altered the balance of Canadian federalism in ways that continue to evolve. The increasing judicial activism, combined with the disproportionate impact on provincial legislation, raises important questions about democratic accountability and the distribution of power within Canada's constitutional framework.
As the data demonstrates, what was once dismissed as theoretical concern has become measurable reality. The Charter's centralizing tendencies have accelerated over time, creating what some constitutional scholars describe as a judicial override mechanism that systematically transfers authority from provincial capitals to federal institutions in Ottawa.
