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James B. Kelly seeks to displace the discussion of the Canadian Supreme Court's "activism" in Charter cases with what he calls a "cabinet-centred" approach to constitutional review under the Charter. Executive government responded to the Charter by developing mechanisms for vetting legislation prior to its introduction to ensure its consistency with the Charter. Sometimes located in legal departments of substantive ministries but at the national level located in the Department of Justice, these mechanisms provide the opportunity for what Kelly calls "legislative activism ... to ensure that the cabinet advances the constitutional guarantees entrenched in the Charter before the judiciary reviews legislation for its constitutionality" (26).
One result of Charter vetting is a decrease in the rate of judicial invalidations of legislation: "Few statutes enacted after 1990 have been invalidated by the Supreme Court" (148). Kelly makes the perhaps unsurprising observation that in the early years after the Charter's adoption the Court was dealing with legislation that had not undergone rights vetting and found many such statutes unconstitutional. Rights vetting insulates legislation against Charter invalidation. The "growing deference on the part of the court to the policy choices of the cabinet and its provincial counterparts... is directly related to the emergence of more principled policy decisions by the cabinet, which limits judicial invalidation through legislative activism" (37).
This legislative activism also contributes to centralization of policy...