Bureaucratic activism and the Charter of Rights and Freedoms: the Department of Justice and its entry into the centre of government

Scholarly works on the impact of the Charter of Rights and Freedoms have la rgely focused on judicial activism and its effect on the political executiv e's ability to advance its policy agenda. As such, these works have suggest ed that a vertical transfer of decision-making authority from the parliamen tary arena to the judicial arena has been the primary outcome of Charter re view. This article considers the emergence of an alternative form of activi sm that is a by-product of judicial review on Charter grounds. Specifically , this article suggests that politically generated bureaucratic activism, a process whereby the development of policy within the administrative state has been restructured to incorporate an extensive Charter review of policy proposals, has ensured that the political executive has retained control ov er its policy agenda and continues to govern from the centre. More importan tly, this bureaucratic activism has been under the direction of the Departm ent of Justice and has seen a transformation within both the conceptualizat ion of the centre of government in Canada and our understanding of executiv e-support agencies. Specifically, because the Department of Justice monopol izes Charter advice within the federal bureaucracy, it has been deployed by the political executive to act as a countervailing source of Charter advic e to that of the judiciary and, thus, Justice has entered the centre of gov ernment in Canada. This development is largely because the Department of Ju stice is an important actor that generates policy space for the political e xecutive in the new policy environment by offsetting judicial power. Second , because the Department of Justice has assumed new roles and responsibilit ies that allow it to control and coordinate the policy activities of line d epartments, Justice has emerged as an executive-support agency. This latter development is the result of bureaucratic activism, which exists in two di stinct forms, reactive and proactive bureaucratic activism, but it is only in the latter phase that Justice has entered the centre of government and e merged as an executive-support agency.