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Charter Conflicts: What is Parliament's Role?

Article  in  International Journal of Constitutional Law · October 2004

DOI: 10.1093/icon/2.4.734 · Source: OAI

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734 BOOK REVIEWS

Janet Hiebert, Charter Conflicts: What is Parliament’s Role? Montreal, Ithaca,

N.Y.: McGill-Queen’s University Press, 2002. Pp. xviii
285.
Reviewed by Mark Tushnet*

Scholars of constitutional law typically focus on how courts interpret their

nation’s constitution. Political scientists typically focus on how a nation’s
political institutions operate in making policy. Studies like Janet Hiebert’s are
rare. Hiebert examines how Canada’s Parliament deals with issues implicating
the human rights protected by the Canadian Charter of Rights and Freedoms.1
Her discussion is wide-ranging, dealing with such questions as “How does the
Charter influence the legislative process, including drafting legislation?” and
“What is the nature of the interaction between the Supreme Court and Parlia-
ment over Charter issues?”
The Canadian Charter of Rights establishes one version of what Stephen
Gardbaum has called the “new commonwealth model” of judicial review.2
Constitutional courts, according to this model, have the power to invalidate or
suspend the operation of legislation, but legislatures have a relatively easy
means of responding to the courts by reenacting the same or a slightly modified
statute.3 Two Charter provisions are relevant. The first is the celebrated
“notwithstanding” clause, which authorizes the national or provincial parlia-
ments to enact legislation notwithstanding its inconsistency with the
Charter.4 The second is the general limitation clause of the Charter’s first
section, which says that the rights protected by the Charter are subject to
“such reasonable limitations as are demonstrably justified in a free and
democratic society.” Hiebert argues that this language invites legislatures to

* Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center

1
Some passages deal with legislative action at the provincial level, but most of the book discusses
action by the nation’s Parliament. See Canadian Charter of Rights and Freedom, Part I of the
Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 [here-
inafter Charter].
2
See Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 AM. J. COMP. L. 707
(2001).
3
Constitutional amendment rules have some bearing on whether the model is new or not. Easily
amendable constitutions at least permit, and may invite, routine legislative responses to court
decisions striking statutes down. The Canadian Constitution can be amended through a variety of
procedures, all of them relatively complex. See Part V of the Constitution Act, 1982 (stating that
the basic rule is that amendments must be approved by majorities in both houses of the national
parliament and by majorities in two-thirds of the provinces in which, in total, at least a majority
of the nation’s population resides).
4
See Charter, supra note 1, at § 33 (stating that such legislation can be in force for no longer than
five years, after which it must be renewed–or effectively repealed by non-renewal). In addition, the
“notwithstanding” clause may not be invoked in connection with legislation that violates certain
rights, such as the right to vote and mobility rights.
BOOK REVIEWS 735

respond to judicial decisions invalidating a particular statute by devising

stronger “demonstrations” of the statute’s justification.5
Hiebert’s main concern is that Canada’s Parliament has been overly defer-
ential to the Supreme Court.6 As she puts it, “excessive reliance on judicial
wisdom to resolve contentious social conflicts [may] lead representative institu-
tions to renege on their responsibility to make responsible decisions about how
to reconcile competing legitimate legislative purposes with the values espoused
in the Charter.”7 She reaches this conclusion after presenting several case stud-
ies of the interaction between the Court and Parliament on Charter issues:
tobacco advertising, criminal procedure, and gay rights. The information she
presents in these case studies is valuable in itself. More important, though, is the
way in which Hiebert allows us to consider the relation between judicial and
legislative decision making in areas of basic human rights.
Hiebert’s main theme is that while the political branches can and do take
the Charter seriously, they do so in the wrong way. Their attention to the
Charter is almost entirely court-centered. They engage in what Hiebert calls
“risk assessment,”8 asking themselves simply how likely it is that a proposal, if
enacted, would be held by the courts to violate Charter rights. Hiebert believes
that constitutionalism by and large would be better served by a process she
calls relational or “conversation[al].”9
Hiebert does not spell out that process in detail, but one can infer its structure
from her account. Its most important features are as follows: The Charter is part
of a larger Constitution. The Constitution, taken as a whole, including the
Charter, protects a complex set of values. No single value ever has transcendent
importance in every context. Rather, implementing the set of values protected
by the Charter requires careful assessment of the degree to which protecting

5
As a textual matter, “demonstrably justified” certainly does invite conversations about justifica-
tions for limitations on rights. As Hiebert points out, § 1 of the Charter invites Parliament to
respond to a judicial determination that a particular statute violates the Charter by coming up
with additional factual material “demonstrating” that the limitation is justified.
6
Canada’s Supreme Court is a general high court, not a specialized constitutional court. Its nine
members are appointed by the Prime Minister, with three required to come from the province of
Québec.
7
See JANET HIEBERT, CHARTER CONFLICTS: WHAT IS A PARLIAMENT’S ROLE? 218 (McGill-Queen’s University
Press 2002).
8
See HIEBERT, supra note 7, at 8.
9
See id. at 50. (discussing Hiebert’s preference for the metaphor of conversation rather than the
more common one of dialogue, because she believes that the term conversation connotes a more
fluid and less structured interaction than does the term dialogue. See also Peter W. Hogg & Allison
A. Bushell, The Charter Dialogue Between the Courts and Legislatures (Or Perhaps the Charter of Rights
Isn’t Such a Bad Thing After All), 35 OSGOODE HALL L.J. 75 (1997). I would note, as well, that the cel-
ebrated Hogg–Bushell analysis of what they call the dialogue between court and Parliament seems
to me to show a rather high level of monologue (or the kind of Socratic dialogue Plato gives us,
with one side saying everything important and the other nodding in agreement).
736 BOOK REVIEWS

one value impairs the government’s ability to protect or promote another. In

general, courts may be better than Parliament at noticing that legislation does,
in fact, intrude on some important value, but legislatures are better than courts
at “reconciling conflicting values.”10 The conversation between court and
Parliament should be one in which courts point out that legislation might
unnecessarily intrude on protected rights, and in which Parliament points out
how protecting certain rights, as the courts suggest, might impair its ability to
protect or promote other, perhaps equally important, rights.
The conversation Hiebert envisions, then, is one in which each side gives
respectful consideration to the points made by the other, each acknowledging
that the other has comparative advantages on some matters but no decisive
claim to supremacy overall.11 “Neither Parliament nor the judiciary should
attempt to replicate each other’s judgment,” and the different judgments they
reach can reflect “different focal points and . . . distinct institutional respons-
ibilities.”12
Hiebert summarizes her approach thus: “Parliamentary judgment requires
careful consideration of how to pursue legislative objectives in ways that are
consistent with the Charter’s normative values. Reflection on judicial concerns,
and the reasons for contrary judgment, are important considerations. Yet these
should not be the entire focus of, or a substitute for, Parliament’s reasoned
judgment.”13 And, similarly, courts “should be sensitive to whether the govern-
ment and Parliament have consciously reflected upon Charter values and
undertaken sincere measures to reconcile conflicts in a principled and sensitive
manner.”14 She points out the valuable contribution made to constitutionalism
by legislative preambles that set out Parliament’s understanding of why its leg-
islation promotes the complex set of values in the Constitution and that make
“explicit the concerns and intents animating legislative decisions.”15
Hiebert’s account of the role of legislatures and courts in a well-function-
ing constitutional system is undoubtedly attractive. Cynics might suggest that
she paints too rosy a picture about the possibility of serious legislative parti-
cipation in the conversation. To that cynicism Hiebert responds with a decep-
tively modest opening chapter on the parliamentary process for vetting
legislative proposals for their consistency with the Charter. Within the limits of

10
See HIEBERT supra note 7, at 53.
11
Hiebert notes that this model is promoted by the “notwithstanding” clause and the general
limitations clause. That seems right as to the limitations clause, but the terms of § 33 of the
Charter seem to me more problematic. Its words appear to require Parliament to acknowledge that
its legislation does violate Charter rights but wishes it to go into effect anyway.
12
See HIEBERT supra note 7, at 220.
13
See id. at 55.
14
See id. at 70–71.
15
See id. at 95.
BOOK REVIEWS 737

the information available to her,16 Hiebert describes the operation of the

Human Rights Law Section of the Department of Justice, which has the task of
writing memoranda identifying possible Charter problems with proposed legis-
lation. Bureaucrats in other ministries, she reports, have become “more recep-
tive, or at least more resigned” to scrutiny of their proposals by the Department
of Justice.17 But, Hiebert notes, although the executive bureaucracy pays sys-
tematic attention to the Charter, the picture at Parliament is less encouraging.
Both houses of Parliament have standing committees whose remit includes
Charter vetting, but they have little time and—more important—little infor-
mation to aid them in considering constitutional questions. In part, Hiebert
notes, this results from the normal operations of the modern parliamentary
system, which in all of its operations tends to be dominated by the executive.
Hiebert’s case studies flesh out this account and suggest that the considera-
tion of Charter values in the legislative process may be less pervasive than her
opening chapter indicates. In one, time pressures arising from a truncated
legislative schedule meant that legislative consideration of Charter values was
limited.18 In another, executive proposals received “little parliamentary scrutiny”
because the issues—dealing with the collection and use of DNA for law enforce-
ment purposes—were not “conducive for making Charter-sensitive decisions.”19
Some degree of cynicism about the ability of the political branches to take
the Charter seriously does seem justified. Not, however, a comprehensive
cynicism.20 As Hiebert puts it, “the Charter has helped to facilitate a political
culture within the bureaucracy that is reluctant to be, or appear to be, indif-
ferent or insensitive towards the Charter.”21 Judges, it seems, are not the only
public employees who can take constitutions seriously.
And yet, Hiebert finds the actual operation of the Canadian system unsatisfy-
ing, because the political branches remain overly court-centered. Risk assess-
ment certainly makes sense, if only because enacting a statute that is highly
likely to be found to violate Charter rights may be politically costly; may impair
the government’s ability to implement its preferred programs; and may require
the expenditure of political capital in responding to the invalidation by intro-
ducing and enacting a new statute, either modified to accommodate the courts’
concerns or supplemented by a stronger demonstration of its justification.

16
See id. at 7–8 (noting that getting accurate and detailed information is difficult).
17
See id. at 8.
18
See id. at Ch. 7.
19
See id. at 119.
20
Obviously, the degree to which such a political culture permeates the political branches will vary
from nation to nation (and, within any nation, from time to time). Hiebert’s analysis weighs
against strong versions of cynicism, and perhaps might shift the burden on to the cynics to show
that, in the political cultures they are dealing with, cynicism is justified.
21
See HIEBERT supra note 7, at 12.
738 BOOK REVIEWS

But, Hiebert argues, the Canadian political culture in the executive bureau-
cracy has taken risk assessment too far. A narrow concern is that, where
constitutional doctrine is unsettled, risk assessment may become risk aversion
as policy makers view the Charter “through the lens of Justice lawyers.”22
rather than through a better set of more policy-oriented lenses. More broadly,
risk assessment embeds the courts’ perspective on the Charter deep in the
bureaucracy rather than operating as a limit on what statutes should be
pushed forward. Hiebert observes that the conversation she envisions will be
most productive if Parliament understands that its role is to articulate its own
understanding of the rights the Charter protects. After all, the Charter—as do
nearly all constitutions with regard to the most important human
rights—identifies the rights it protects on a rather high level of abstraction.
Scholars of constitutional law have devoted a great deal of attention to the
problems courts face in specifying what those rights actually are in particular
contexts. Hiebert notes, modestly but importantly, that the same problem of
specification arises at the legislative level. And, she suggests, judicial consider-
ation of the specification question would be improved if it were informed by the
legislature’s independent analysis of that question.
Hiebert makes the argument in her case studies that Parliament has a
mistaken understanding of its role in this context. The legislature’s response to
a judicial decision invalidating a comprehensive program of regulating
tobacco advertising, Hiebert says, “demonstrates how judicial review of rights
claims can undermine political will to exercise independent judgment about
how best to pursue a course of action deemed to be in the public interest, even
when the rights claim is far removed from the philosophical purposes of
protecting rights from state actions.”23 Parliament responded to the Court’s
action by adjusting its legislation to fit precisely within the contours the Court
had identified, even though doing so substantially impaired the accomplish-
ment of the goals Parliament initially thought important. It may be worth not-
ing, as well, that the problem of regulating tobacco advertising was difficult
politically in the first place; even a slight disruption of the equilibrium struck
in the enacted legislation could produce a deadlock in response.24
Hiebert’s discussion of Canada’s gay rights cases comes down on the courts’
side, influencing her overall assessment of the “dynamic role the Charter
performs in changing the assumptions and expectations of the polity.”25 The
Charter, she continues, “is influencing assumptions about the judiciary’s role

22
See id. at 142.
23
See id. at 73.
24
A more cynical view is that Parliament may have enacted the regulations knowing that they
were likely to be invalidated, counting on scoring points with the public for trying to do something,
and on not losing points with the tobacco industry for actually doing something.
25
See HIEBERT supra note 7, at 201.
BOOK REVIEWS 739

in protecting rights and assessing discrimination, affecting interest-group

behaviour, and shaping political responses to rights claiming, particularly
where these claims are upheld by the judiciary.”26 In gay rights cases, for
example, the courts’ interventions seems to have unblocked the legislative
process, revealing the existence of latent support for gay rights among the
public. And, in Hiebert’s view, judicial intervention was particularly valuable
because the claims in gay rights cases, unlike those in the tobacco advertising
case, were close to the heart of the reasons for which the public wants to place
constitutional limits on government power.
Hiebert concludes by summarizing the two sides of the coin of the consti-
tutionalism she prefers. We must keep in mind, she insists, that constitutions
aim at promoting complex values but are written, almost necessarily, in simple
terms. That means, she says, that in many case “legislative decisions infringing
Charter values are not so patently incongruous with fundamental values that
reasonable and tolerant people will overwhelmingly reject the validity of
political judgment.”27 Excessive judicial intervention—even intervention pred-
icated on the judges’ good-faith view that some piece of legislation does indeed
violate the Charter—can undermine the development of a political culture
more broadly supportive of constitutional values.
Hiebert’s insightful discussion raises a number of questions for scholars of
constitutional law generally. Whether the political branches have the capacity
to evaluate legislative proposals for constitutionality—and an interest in doing
so—is a central question for those who are interested in coming up with an
appropriate balance of democratic self-government and constitutional limits
on the power of the people to determine policy.
My assessment of the case studies Hiebert presents is less sanguine than her
own. For me, they show that the executive government has the capacity to
engage in Charter vetting, and sometimes an interest in doing so, but that the
legislative branch is not as well positioned in either regard. One question for
further inquiry is whether, as Hiebert suggests, this results from the modern
form of parliamentary government. One might ask, for example, whether the
executive and legislative branches in U.S.-style separation-of-powers systems
have effective systems for evaluating legislation’s constitutionality,28 and
whether the procedures among the branches themselves are equally as effective.
Hiebert’s case studies provide some support, at least, for the cynical view of
the legislature’s capacity in this regard. However, they also show that compre-
hensive skepticism is not justified. Another question, then, is, “What are the
conditions under which executive ministries and legislatures can and do

26
See id.
27
See id. at 219.
28
For the United States, my sense is that the executive branch has a reasonably good system, oper-
ated by the Office of Legal Counsel in the Department of Justice, and that neither house of
Congress has anything approaching that system in scope or quality.
740 BOOK REVIEWS

engage in effective evaluation of legislation for constitutionality?”29 Hiebert’s

case studies pick out one important condition—legislatures, in particular,
need time to do the job well.30 Her case studies hint at another condition: leg-
islatures may do reasonably well when the constitutional issues are in the
midrange of political importance, and badly when the issues are matters of
deep political division.
Finally, there is the question on which Hiebert focuses most attention. Given
that courts will be involved in determining whether legislation is constitu-
tional, is it possible for there to be a real conversation between courts and
legislatures over the constitution’s meaning? The difficulty is that, in the end,
someone has to have the last word. And, if—as seems to be true in a wide range
of cases—judicial assistance in implementing the law is quite important, the
courts are likely to have the last word in many cases. The conversation ends,
that is, with what the courts have to say. Legislatures might reason backward
from that conclusion and decide either to forgo deliberating about constitu-
tionality at all (believing it to be pointless) or to be court-centric in their
deliberations, confining their analysis to predictions about what the courts will
do in the end.
I suspect that the answer to this question will depend on the temporal
perspective one adopts—and, therefore, whether legislatures have the incentive
to adopt an appropriate time frame. In the short run, and with respect to
individual cases, the courts will have the last word. In the longer run, though,
legislatures can weigh in. In the United States, the usual observation is that the
political branches eventually get their way because of the gradual process by
which Supreme Courts justices are replaced by others chosen by the president
and the Senate. That process, though, does not involve constitutional evalua-
tion by Congress of proposed legislation. Hiebert’s analysis suggests that a
legislature with an appropriately long-term perspective might engage in non-
court-centric constitutional evaluations piecemeal, statute by statute. That
leads to a final question: What are the conditions under which legislatures will
adopt such a perspective?31

29
One possibility is that such evaluation is better in parliamentary systems when the government
relaxes party discipline and allows a free vote. If that is correct, the inquiry is pushed back to the
next level, where one would seek to identify the conditions under which governments allow free
votes.
30
Again, time may be less important for the executive ministries in parliamentary systems,
because they have a great deal of control over when legislation is introduced, giving them the time
beforehand in which to do the constitutional evaluation.
31
Recent scholarship on the creation and maintenance of constitutional courts has focused on
whether there is a dominant political party or coalition, or, instead, a party system in which par-
tisan control of the legislature is believed by all to be likely to change periodically. See generally TOM
GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL CASES IN ASIAN COURTS (Cambridge
University Press 2003): RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE
NEW CONSTITUTIONALISM (Harvard University Press 2004); Matthew C. Stephenson, “When the Devil
 BOOK REVIEWS 741

Hiebert’s book is an extremely important contribution to constitutional

studies. It examines questions neglected both by legal scholars who focus on
courts and ignore the role of legislatures in well-functioning constitutional
systems and by political scientists who focus on the substance of legislative
policy and ignore the role of constitutional deliberation in legislative decision
making. The questions on which she focuses should occupy scholarly attention,
and her examination of them provides a solid foundation for future work.

Turns . . .”: The Political Foundations of Independent Judicial Review, 32 J. LEGAL STUD. 59 (2003).
Perhaps some similar mechanism might be at work conducing legislatures to adopt the appropri-
ate long-term perspective required for independent legislative constitutional evaluation.

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