Inclusion, Voice, and Process-Based Constitutionalism

This article explores a growing emphasis on process issues in the elaboration of constitutional rights and freedoms, focusing on the Canadian Charter of Rights and Freedoms. In a diverse range of contexts, judges are framing constitutional rights and freedoms in terms of the processes and practices they require, rather than in terms of specific constitutionally mandated substantive outcomes. Thus, constitutional rights have been interpreted to require a duty to negotiate, a duty to consult, a duty to accommodate, and entitlements to participate in democratic governance. The growing emphasis on processes and practices is positive to the extent that it resonates with new understandings of social regulation in modern society, empowers institutional and social actors as change makers, and reduces reliance on the judiciary as interpreters of the substantive content of rights in diverse social and institutional contexts. Values of democratic participation, institutional and social transformation, empowerment, and self-governance also emerge with the shift towards processes and practices. And yet, it is also important to consider whether and to what extent a focus on processes and practices risks undermining constitutional protections