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Webber, Jeremy --- "Institutional Dialogue Between Courts and Legislaturesin the Definition of Fundamental Rights: Lessons From Canada (andElsewhere)" [2003] AUJlHRights 8; (2003) 9(1) Australian Journal of HumanRights 9

Institutional dialogue between courts and legislatures in the de inition of fundamentalrights: lessons from Canada (and elsewhere)

Jeremy Webber*

Introduction

In recent years, a number of commentators have used the concept of dialogue to capture therelationship between Canadian courts and legislatures in the judicial review of

constitutionality.1 As long as dialogue is treated sceptically and is not assumed to describe anideal conversation, the idea of dialogue can provide a useful perspective on human rightsprotections generally, for it emphasises the extent to which both courts and legislatures havevaluable things to say about rights, directs our attention to the ways in which the twoinstitutions interact, and provides tools for evaluating the remarkably broad range of mechanisms that can be used to protect rights.

This paper reviews a spectrum of means by which such ‘dialogue’ over rights can be structuredin a constitutional system. It then focuses in more detail on three speci꡷ic forms of rightsprotection and evaluates the institutional balance achieved in each:

• the ꡷inding, by t he courts, t hat constitutional provisions dealing with other matters containimplicit rights guarantees, so that rights come to be addressed through the adjudication of

provisions having lit tle ostensibly to do with rights (an ‘implied rights’ approach);

• the entrenchment of a Bill of Rights in the Constitution, backed by judicial review, but subject to express derogation by legislative action (the approach contained in s 33 — the‘not withstanding clause’ — of the C anadian Charter of Rights and Freedoms); and

• the declaration of rights in an ordinary statute, lacking constitutional status but protected by arequirement that derogation occur in a speci꡷ied manner and form (the ‘statutory Bill of Rights’approach).

Each of these mechanisms has been used in Canada. In this paper I will draw primarily on

Canadian experience, although I will also discuss the Australian jurisprudence on implied rightsand refer to approaches to rights taken in a number of other chie꡷ly Anglo‐Americanjurisdictions.

The notion that rights guarantees are characterised by ‘dialogue’ between courts and

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legislatures may strike the reader as both counter‐intuitive and normatively inappropriate. Wegenerally think of judicial review in much simpler and monological terms. Parliament passeslaws, and courts either uphold them or strike them down on the basis of their interpretation of the Constitution. Any sense that political actors in꡷luence the courts’ interpretation of theConstitution seems incompatible with judicial independence and the rule of law; we assume that courts should come to their own conclusions as to constitutionality, without reference to what political actors like or dislike. Some legal realists have emphasised that political actors do havean impact on judicial review. But this impact is generally treated by the realists themselves as

incompatible with claims of judicial independence.

In this paper, I will deal with principled justi꡷ications for legislative participation in thede꡷inition of rights only en passant , as part of the evaluation of the balance struck by various

rights instruments.2 I should note, however, that institutional dialogue over rights is much morecommon than is often acknowledged — indeed is, to some extent, universal.

In Canada, the claim that judicial review involves dialogue has special credence because of twodistinctive aspects of the Canadian Charter of Rights and Freedoms. First, the Canadian Chartercontains an express limitation clause, s 1, which states that its rights and freedoms are ‘subject only to such reasonable limits, prescribed by law, as can be demonstrably justi꡷ied in a free and

democratic society’. This clause recognises not only that rights are subject to limits, but also,implicitly, that government should have the burden of justifying those limits (R v Oakes at 136–137). Second, the Canadian Charter permits legislatures to derogate from some of the rights it enunciates. Section 33 provides that legislatures can insulate a statute from certain forms of Charter review by expressly declaring that the statute shall operate notwithstanding certainsections of the Canadian Charter of Rights and Freedoms. When this occurs, judicial review isexcluded. Both these provisions suggest that the legislature may actively participate in thede꡷inition of constitutional protections.

Although these clauses are distinctively Canadian, there are functional parallels in virtually allconstitutions. Other Bills of Rights contain express limitation clauses (see New Zealand Bill of

Rights Act 1990, s 5; Constitution of the Republic of South Africa 1996, s 36; for clauses applicableto speci꡷ic rights, see International Covenant on Civil and Political Rights, art 19(3); EuropeanConvention on Human Rights, art 10(2)). But even if they do not, it is generally conceded that allrights are subject to limits. Those limits may not be conceived as restrictions of an otherwiseunlimited right; they may be conceived as aspects of the de꡷inition of the right. And there may beno clear understanding that government has the burden of justifying limits; it may simply beassumed that the courts will determine the limits. But these distinctions make little differencefor our purposes. The rights are, in any case, subject to limits; and when a statute is subjected tojudicial review, any government will seek to justify a measure that it wishes to retain.

The Canadian Charter’s ‘notwithstanding clause’ appears more strikingly original than the

limitation clause, but even it has functional parallels elsewhere. Virtually every constitution issubject to amendment by some legislative process, onerous though it may be.3 The distinctivecharacteristic of the Canadian provision is really the ease with which the rights guarantees maybe set aside, and the implicit message that it may be legitimate to do so.

All of this suggests that there is something of broader signi꡷icance to the notion of dialoguebetween courts and legislature in judicial review. At the very least, it emphasises that constitutional review is about a complex relationship between legislatures and courts. Judicialreview is not simply about laws enacted and then subjected to the guillotine of judicialnulli꡷ication. There is considerably more potential for — indeed presence of — to and frobetween legislatures and courts. Or, to put it another way, the interpretation and enforcement of

rights by courts always operates within a zone of tolerance created by the relative dif꡷iculty of legislative override (whether the override would occur by ordinary legislative process or byconstitutional amendment). The control of the courts over legislative action is alwaysconditional, dependent on the degree of institutional friction within the system. This means that it is possible for framers of a constitution to structure the institutional relationship in a variety

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of ways to achieve a desired balance in legislative and judicial roles.

One ꡷inal comment. Throughout this paper I use ‘political’ in contrast to ‘judicial’ to refer to thebroad spectrum of public debate, decision making and action outside the courts. Of course,judges are also political actors in a broad sense. Moreover, I accept that there is no sharpdistinction between the kinds of reasons employed by judges and those employed in politicaldiscourse generally (although there are signi꡷icant differences in the weight given to particularkinds of reasons). My choice of terminology is merely a matter of convenience. In this paper I am

concerned with the manner in which judges enter into dialogue with broader political processes(especially with governments and legislatures) in their administration of rights guarantees.Those broader political processes are wide and various; it is simplest to use the catch‐all‘political’ to describe them.

Clearing the underbrush

Before plunging into the mechanisms for dialogue, it is worth setting out a series of assumptionsthat underlie my discussion of Bills of Rights.

First, I do not accept a simple ‘checks and balances’ — or libertarian — justi꡷ication forconstitutional review, in which judicial review is defended purely and simply because it limitsgovernment, regardless of the grounds of limitation. On the contrary, the ability to participateactively in government to achieve societal goals is a key dimension of freedom. A corollary of thisis the vesting of a measure of trust in democratic institutions — a commitment to their ef꡷icacy,as the most representative of governmental institutions. All other things being equal, democraticinstitutions should be permitted to make decisions and carry them into effect. The nulli꡷icationof statutes through judicial review therefore requires speci꡷ic justi꡷ication.

Second, the choice of whether to have judicial review of rights guarantees is not astraightforward choice between having rights or not. Legislatures too are concerned with rights,although sometimes in different ways from courts. Indeed, institutional characteristics meanthat both courts and legislatures have strengths and weaknesses in the de꡷inition, interpretation,and application of rights, to which I will return below. One can therefore be a strong supporter of rights without supporting judicial review on the basis of a constitutionalised Bill of Rights.Support for judicial review requires an additional premise: a reason why that particular institutional form is appropriate.

I do not want to appear disingenuous about this. I do have concerns with the extent of hegemonyof the discourse of rights and about its tendency towards simpli꡷ication, uniformity of treatment,highly symbolic argumentation, and resistance to compromise, all of which I have exploredelsewhere (Webber 1993: 2000a). Scepticism towards or opposition to a constitutionalised Billof Rights is often founded upon opposition to the peculiar role of rights discourse under such aregime, and this paper is no exception. But for the purposes of this paper, it is suf꡷icient to note

that scepticism with respect to judicial review may have little to do with support for oropposition to rights. One can be for rights, but consider other means of protection to bepreferable.

Third, constitutional Bills of Rights often serve a variety of ends; the substantive protection of individual rights and freedoms is not their sole function. They have often played an important role, for example, in national consolidation. They have established a common basis of citizenship, af꡷irmed that all citizens are subject to the same governmental authority, or sought to enunciate the fundamental values of the nation. This national symbolic role may align closelywith the protection of rights but the two functions are not identical. There can be points at which they diverge. There may, for example, be very good reason on grounds closely linked to

human rights concerns for recognising a measure of diversity within the public institutions of the state. It may be perfectly appropriate, for example, for cultural minorities (indigenouspeoples; large linguistic minorities in a country such as Canada) to have access to their owninstitutions (schools; social programs; even governmental structures). Yet those very demandshave often been resisted in the language of equality derived from constitutional guarantees, for


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reasons that have little to do with individual liberty but a great deal to do with a desire fornational consolidation (Webber 1993: 230‐231; 1994: 141‐144 and 234 and following; 1999:260‐277). It is important, then, to be clear on the functions to be served by a Bill of Rights. In thisarticle I will focus entirely on the human rights dimension of Bills of Rights, although notingcomplications posed by their national symbolic role.

Fourth, it is important to pay attention to the real issues that are likely to be dealt with under aBill of Rights. Many justi꡷ications for Bills of Rights rely upon a parade of horribles; the rights

guarantees are justi꡷ied on the basis of the need to prevent the grossest of human rightsviolations. But in most societies with strong democratic cultures, Bills of Rights are not used toprevent gross violations. They are deployed at the margins. They de꡷ine the rights’ outer limits,or rule upon their implications in situations in which judgments of right and wrong are highlycomplex and disputed. Under the Canadian Charter of Rights and Freedoms, for example, theSupreme Court of Canada struck down the Federal Government’s legislation regulating tobaccoadvertising on the basis of freedom of expression (RJR — MacDonald v Canada)); it has struck down provisions that prohibited interprovincial law ꡷irms (Black v Law Society of Aldebta) orrequired lawyers to be Canadian citizens ( Andrews v Law Society of British Columbia). Granted, it has made some decisions that have had an important impact on the rights of individuals. This istrue, for example, of its early judgment striking down Canada’s abortion law on procedural

grounds (R v Morgentaler ), or its more recent decision extending Alberta’s Individual’s RightsProtection Act to include discrimination on the basis of sexual orientation (Vriend ). But in thevast majority of cases there have been strong arguments on each side of the issue; the ultimatedecision has been a matter of ꡷ine determination.

If the rights culture in a particular country is suf꡷iciently strong that gross violations of rightsnever come before the courts, then one has to ask whether judges must have the last word. If judicial review does nothing more than substitute the reasoned opinion of a judge for thereasoned opinion of the legislature on a matter of real doubt as to what justice requires, whybother? Of course, the situation is rarely that simple. Legislatures can lose sight of rightsconsiderations in their rush to achieve a social objective. Unpopular minorities can ꡷ind

themselves disadvantaged by measures that individually may not amount to much, but that cumulatively impose a signi꡷icant and debilitating burden. The point is that there are many waysin which rights protections can be achieved. One may structure the institutional relationshipdifferently depending on the matters likely to come before the courts.

This in turn suggests that different forms of rights protection may be appropriate in different contexts. One may need entrenched Bills of Rights most in societies that lack an establisheddemocratic or human rights culture, where the symbolic af꡷irmation of rights serves animportant role and political power must be forcefully constrained. They may be less necessary insocieties in which human rights already form an important strand in political debate.

Institutional dialogue and the structure of human rights protections

What elements determine the scope for dialogue in the enforcement of human rightsprotections? They are remarkably diverse. When taken together, they de꡷ine a broad range of options for the institutionalisation of human rights. It will be useful to address them under threeheadings: Extent of entrenchment; Strategy of judicial review; and Mechanisms for legislativeinvolvement in the de꡷inition of rights.

Extent of entrenchment

We commonly think of constitutional entrenchment as being all or nothing: rights are eitherenshrined in the Constitution, exempt from legislative tampering, or they are left to the mercy of

the legislature. However, entrenchment is a much more relative concept than this suggests. Inessence, it is concerned with the degree to which rights provisions have a controlling impact onlegislation, and the ease with which the provisions can be changed. There are a wide variety of means by which rights can be pursued, each postulating a different relationship betweenlegislature and courts. Often these are cumulated within one legal system. Canadian law sports a

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particularly rich selection. Here I canvass the possibilities in order of increasing constraint.

Non‐binding declarations of rights

Some rights have no binding force within the domestic legal system. The protections operate byvirtue of their moral force alone. Their impact can nevertheless be substantial, inducinglegislatures to amend their laws to bring them into conformity.

The most common example occurs in the case of international norms. In countries descendedfrom the British constitutional tradition, international norms created by treaty have no direct force within domestic law. They need to be incorporated into legislation in order to take effect domestically. In formal terms, then, the rights are at the mercy of the domestic legislatures andcan exercise no direct constraining effect.

The international instruments can nevertheless have a substantial impact. In Canada, forexample, a decision by the UN Human Rights Committee held that the de꡷inition of ‘Indian’ in thefederal Indian Act contravened art 27 of the International Covenant on Civil and Political Rights,because the Act’s gender speci꡷ic structure (under which Indian women who married non‐Indian men lost their status, but Indian men who married non‐Indian women did not)unjusti꡷iably denied Aboriginal women the right to enjoy their culture in community with othermembers of their group (Lovelace v Canada). The Act was amended, even though the measurehad previously been upheld by the Canadian courts under the Canadian Bill of Rights (astatutory Bill of Rights pre‐dating the adoption of the Canadian Charter of Rights and Freedoms)and even though a number of First Nations disagreed vehemently with the change ( An Act toamend the Indian Act (Canada); A‐G Canada v Lavell ). Similarly, in Australia, a decision of theHuman Rights Committee prompted the Commonwealth Parliament to adopt legislationoverriding Tasmania’s criminalisation of sex between consenting homosexual adult men (Toonenv Australia; Human Rights (Sexual Conduct) Act (Cth); Croome v Tasmania). And until theincorporation of the European Convention on Human Rights into British law by the Human Rights

Act 1998 (UK), that Convention, too had no direct force within domestic British law (except as anaid to interpretation). It nevertheless had a signi꡷icant impact, leading to a number of amendments to British law (Kinley 1993).

There are also ‘programmatic rights’ in international law and some national constitutions. Theserights are similarly exempt from judicial review. Their implementation is left entirely to thediscretion of the legislature (see, for example, International Covenant on Economic, Social andCultural Rights, art 2(1); Constitution of the Republic of Ireland, art 45; Constitution of India, Pt IV).

Interpretive conventions based on implicit norms

Human rights can also have an impact on the law through interpretive conventions, under which

courts strive to interpret legislation in a manner consistent with rights. Here, the rightsconsiderations have no independent constraining effect. They cannot be used to strike downlegislation. They simply shape the judge’s interpretation of the law, so that the law is rendered asconsistent as possible with human rights norms.

These human rights norms can sometimes be a matter of general principle, with no authoritativelegislative expression. One good example is found in the Supreme Court of Canada’s decision inMacKeigan v Hickman. There, the relevant statute provided that a Commission of Inquiry couldsummon ‘any persons’ to give evidence as a witness. The Court held that this very generallanguage should not be taken to override a principle as important as judicial independence; it therefore held that the statute did not permit a Commission to compel a judge to testify as to

their reasons for decision in a particular case. Another example is the requirement of compensation when property is expropriated in Canada and the UK. There is no expressguarantee of compensation. The courts simply presume that compensation is to be paid unlessthe legislature stipulates otherwise ( A‐G v DeKeyser’s Royal Hotel ; Burmah Oil v Lord Advocate;Manitoba Fisheries v The Queen).

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Here again the impact can be substantial even though ostensibly one is merely in the realm of statutory interpretation. There is always considerable latitude in interpretation. If courts insist upon an extraordinary degree of clarity before they interpret a statute so that it constrainsrights, the protection can be very great indeed. It can amount to a requirement that to impairrights, a legislature must do so explicitly.

Interpretive conventions based on explicit norms

In some cases, legislatures enact express norms, which are then used by courts in theirinterpretation of other statutes. This method of rights protection works much like that describedin the previous section: the courts do not invalidate legislation, but they do interpret it restrictively in order to avoid an impairment of rights. As in the previous section, the effect canbe signi꡷icant; the courts can require a very high degree of clarity before they ꡷ind that rightshave been restricted (see, for example, Winnipeg School Division No 1 v Craton at 156).

The difference is the involvement of the legislature in the speci꡷ication of the norms. This createsreal give and take between courts and legislature. The legislature sets the norms, sometimesenshrining them in a statutory Bill of Rights; the courts take those norms and use them tointerpret other laws, construing those laws so that they respect the legislature’s norms. Thisdiffers from the situation described in the previous section, in which courts are responsible bothfor the articulation of the norms and for their use in interpretation.

This form of interpretation was one of the ways in which the statutory, pre‐Charter, Canadian Billof Rights was understood to work — although how well it worked is another question. Theweakness of the Canadian Bill of Rights — its lack of constraining effect — was ꡷iercely criticisedby human rights advocates (Tarnopolsky 1975). A more successful example is the New Zealand Bill of Rights Act 1990. That act cannot be used to invalidate legislation, yet it has neverthelesshad a signi꡷icant impact on criminal procedure and the common law of defamation (see Keith2000; Allan 2000). Interpretation is also one strategy used by the UK’s Human Rights Act 1998,which incorporates the European Convention on Human Rights. That Act, however, goes wellbeyond interpretation (i) to invalidate subordinate legislation; (ii) to bind public authorities; (iii)to permit courts to declare that primary legislation is incompatible with the Convention(although that declaration does not affect the statute’s validity); and (iv) to permit a Minister of

the Crown to make amendments to bring the statute into conformity. 4

In each of these examples, the human rights norms are enacted by the same legislature whosestatutes are then subject to scrutiny. But judicial interpretation sometimes draws on normsarticulated by other legislatures than the one scrutinised. Indeed, this is one way in which treatynorms can have an impact on domestic law, even without the incorporation of the treaty intodomestic statutes. The courts interpret domestic law so that it is, as far as possible, consistent with international law (see, for example, Minister of State for Immigration and Ethnic Affairs v

Teoh).

Rights guarantees protected by a manner and form requirement

In the mechanisms examined thus far, the rights norms do not bind the legislature. At least intheory, the legislature could set them aside, as long as it did so with suf꡷icient clarity toovercome the court’s interpretive presumptions. In Canada, however, legislatures have enactedrights norms, binding those very legislatures, through the imaginative use of manner and formrequirements.

To understand how these requirements work, it is important to realise that in the Britishtradition legislatures generally cannot bind themselves. The doctrine of parliamentarysovereignty requires that at any point, the legislature can change its mind, passing laws that contradict its earlier enactments. Whenever there is inconsistency, the former laws are repealedto the extent of that inconsistency. Among other things, this principle operates as an important bulwark of democracy, for it means that legislators can always repeal the work of theirpredecessors; a government facing defeat cannot bind its successor.


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Manner and form requirements operate as a limited exception to this principle, at least in

Canada.5 Although legislatures cannot bind themselves as to substance, Canadian courts haveheld that legislatures can bind themselves as to process. They can stipulate a particularprocedure — a speci꡷ic ‘manner and form’ — by which enactments must be made. Untilrepealed, these stipulations (as long as they are genuinely procedural and do not amount to adisguised limit on substance) must be followed by the legislature’s successors (R v Drybones;Ford v Quebec; Reference Re: Canada Assistance Plan at 322–324). These requirements can beused to offer a quali꡷ied protection to human rights norms. Instead of attempting to impose the

norms directly, the legislature enacts, in the rights instrument, a distinctive procedure by whichrestrictions must be adopted. Because it is purely procedural, the requirement binds thelegislature’s successors.

In Canada, the stipulated requirement is usually that, to set aside the rights guarantees, thelegislature must state explicitly that the statute is to apply notwithstanding the rightsguarantees. This does not bind as to substance; the legislature can always set aside theprotections, by an ordinary majority, as long as it does so explicitly. But it does guard against inadvertent restrictions of rights, and it also plays a very important signalling function: anygovernment seeking to set aside the guarantees must do so explicitly, and that will in turn tendto generate a vigorous public debate, forcing the government to justify its actions. The manner

and form requirement serves, in other words, as a trigger to the democratic process, byproviding clear notice that a rights issue has been raised.

In Canada’s federal system, statutory Bills of Rights of this kind only bind legislation of the level

of government that enacts them.6

This was the principal approach adopted in the Canadian Bill of Rights — the statutory Bill of Rights enacted by the Parliament of Canada in 1960. Although its role in rights protection haslargely been overtaken by the Canadian Charter of Rights and Freedoms (a constitutionalinstrument), the Canadian Bill of Rights remains in force. In 1985, it was used by three judges of the Supreme Court of Canada to strike down the refugee determination process in Canada’s

Immigration Act (Singh v Minister of Employment and Immigration; the other three justices cameto the same conclusion on the basis of the Charter). Alberta employed a similar approach in the

Alberta Bill of Rights of 1972. Quebec did so as well in the Charter of Human Rights and Freedoms,a statutory Bill of Rights enacted in 1975. In 1988, the Supreme Court of Canada relied on theQuebec Charter to strike down a s of Quebec’s language legislation that banned the use of English on commercial signs (Ford v Quebec). The decision had a very signi꡷icant political impact.The Quebec National Assembly re‐adopted the sign law in modi꡷ied form ( An Act to amend theCharter of the French Language, 1988, popularly known as Bill 178), this time protecting it fromthe Canadian Charter of Rights and Freedoms (but not the Quebec Charter of Human Rights and Freedoms) through the use of a ‘notwithstanding clause’. As I discuss further below, that actionprovoked vigorous criticism from English speaking Canadians. This reaction contributed to the

ultimate defeat of a package of constitutional amendments (the ‘Meech Lake Accord’) supportedby Quebec (Webber 1994: 138ff).

The effectiveness of manner and form requirements is therefore well established in Canadianlaw. They are used to give quali꡷ied force to statutory rights guarantees. I return to the value of these instruments in structuring institutional dialogue below.

Constitutionally entrenched guarantees

Of course, when we think about Bills of Rights we usually think of instruments subject to fullconstitutional entrenchment. Even here, however, there is more variation than might at ꡷irst

appear.

First, the nature of the entrenched norms can be very different, with important consequencesfor the scope of judicial review. Occasionally, decisions that are (one suspects) primarily basedon rights considerations are framed in language that has little to do with rights. This was a


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familiar phenomenon in Canada prior to the adoption of the Canadian Charter of Rights and Freedoms where, in a few celebrated cases, decisions with a strong human rights element werebased on the federal/provincial division of powers.

In some cases, this was bona ꡷ide division of powers reasoning, in which the rights concern wasgenuinely tied to the nature of the particular power in issue. Thus, in Canada, criminal law is afederal matter. The criminal power was interpreted to cover a number of legislative aims that had strong potential to impair individual rights, such as the suppression of sedition or the

enforcement of religion (an interpretation with some justi꡷ication, given the purposes to whichthe criminal law had historically been put). Provincial laws dealing with these matters werestruck down as infringing upon federal authority (Switzman v Elbling; AG Ontario v Hamilton

Street Railway ; Henry Birks & Sons v Montreal ).7

At other times, one had the impression that division of powers reasoning was being distorted inorder to attain a rights objective. This may have been the case in McKay v The Queen, forexample, in which by‐laws enacted under provincial authority to regulate signs were held not toapply to federal election signs.

In any case, although provisions dealing with the division of powers have on occasion served the

ends of human rights, their potential has been limited. The protection they afforded wasminimalist, for the court had to ꡷ind a plausible hook within division of powers reasoning onwhich to hang its decision. In principle the decisions were only concerned with who couldinfringe rights; if the measures of one level of government were struck down, it was always opento the other level to adopt them. Finally, the simple fact that these decisions relied on surrogatearguments meant that it was impossible to develop a coherent and explicit rights jurisprudence.

A second type of entrenched rights consists of implied rights. These rights are not explicitly set out in the Constitution, but instead are derived from other provisions that ostensibly have littleto do with rights. They differ from the division of powers judgments in that the court uses thelanguage of rights in its reasoning, ꡷inding that a particular right is implicit in the constitution.

The notion of implied rights has had a large hurdle to clear. There is a strong commitment toparliamentary sovereignty in the British tradition. That has generally meant that constitutionalrestrictions are read narrowly, especially if (as in the case of rights) the effect of the restrictionwould be to prevent all levels of government from enacting the measure.

There are many ways in which rights might plausibly be implied. The ones that have attained themost currency, however, are founded on constitutional provisions that establish democraticstructures of government. The argument is that democratic institutions cannot operate without free political debate. Some protection of freedom of speech must therefore be implied.

Although certain Canadian judges ꡷lirted with the implication of rights guarantees prior to

adoption of the Charter (and indeed after), this reasoning had not found its way into the reasonsfor judgment of the majority of the Supreme Court of Canada prior to the adoption of theCanadian Charter of Rights and Freedoms. Instead, the majority had always rested its decision onalternative grounds. Ironically, however, Canadian musings about an ‘implied Bill of Rights’ did

contribute to the development of a vigorous implied rights jurisprudence in Australia.8 I willreturn to this form of protection below.

Third, there are explicit rights guarantees. I need say little about them here for they are by farthe best known. I simply note that they too can vary considerably in their constraining effect,depending on how they are drafted.

Indeed, not all express rights are justiciable. So‐called ‘programmatic’ rights — often rights toservices that would impose onerous ꡷inancial obligations on government (housing; education;social welfare; environmental protection) — serve merely as directions to government to makethose aims a legislative priority. The courts have no role in their enforcement.

Entrenched rights also differ in the extent to which they are insulated from legislative



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impairment or change. There are at least three different ways in which rights protections can besubject to legislative restriction.

First, all rights are subject to limitations; the very process of de꡷inition, through judicialinterpretation, involves a delineation of limits. When scrutinising a statute impugned on humanrights grounds, the courts will attempt to determine whether a legislature has overstepped thosebounds. In this process, political actors too play a role. They can discuss rights considerations at

the time of adopting legislation, offering rationalisations that in turn in꡷luence the courts. 9 They

can, through their lawyers, offer further justi꡷ications when the matter goes to court. Thus, at least through the exercise of persuasion, political actors can have an impact on the scope of therights. In Canada, this role is contemplated in s 1 of the Charter.

Second, Charters of Rights can expressly permit legislative derogations. As already mentioned,that is the case in s 33 of the Canadian Charter. I explore s 33 in detail below.

Ultimately, rights guarantees can always be set aside by constitutional amendment. The ease of amendment differs from constitution to constitution. Some constitutional provisions, in somecountries, are amendable by ordinary majority. In Canada, this was the case with guarantees forthe use of French originally applied to the North West Territories and inherited by the provinces

of Alberta and Saskatchewan upon their creation. These provisions had fallen into disuse priorto the provinces’ creation, without being formally repealed. When, in 1988, the Supreme Court found that they were still in force, the two provinces immediately repealed the guarantees andvalidated previous acts passed in violation of the requirements (R v Mercure; The Language Act (Saskatchewan); Languages Act (Alberta)).

Generally the mode of amendment is considerably more dif꡷icult than this. It may be so dif꡷icult as to be functionally impossible. Indeed, it has been argued that some provisions of someconstitutions are unamendable (although this is very rare). Even those constitutions, however,

can be overthrown by revolution.10 It is preferable, then, not to treat entrenchment as though it rendered constitutional provisions untouchable. In the last analysis, all constitutions are open to

change. The sanctity of rights protections therefore depends, always, upon the dynamic relationsamong institutions in the political order. Entrenchment is always a matter of degree.

Strategy of judicial review

The extent of institutional interaction — including the extent to which legislatures participate inthe de꡷inition of rights — is also affected by the judges’ conception of their task. Their de꡷initionof the content of rights can either foster legislative action or foreclose it.

Rights guarantees as minimum guarantees

First, room for legislative action can be preserved by courts approaching constitutionalprovisions on the basis that they are meant to provide minimum guarantees, not to confer oncourts the power to regulate everything having to do with the subject matter of particular rights,such as expression or religion. Such a restrained interpretation has the merit of coinciding withmost justi꡷ications for judicial review on rights grounds. These justi꡷ications tend to focus onrights guarantees as minimum guarantees — as ensuring a basic minimum level of respect for

individual freedom and equality.11

Constitutional texts rarely take such a minimalist form, however. They speak in ringing language,proclaiming the need to respect ‘freedom of expression’ or ‘equality before the law’, without hedging those concepts about with quali꡷ications. Constitutional provisions do not speak of a

‘necessary minimum of free expression’ or a ‘fundamental baseline of equality’. Courts, facedwith the rights’ broad language, can be tempted to give it full rein. They can start with theabstract concepts of expression and equality and seek to de꡷ine exhaustively their scope andmeaning in a liberal society. The role of judicially enforced rights as minimum guarantees can fallaway, the concepts come to be de꡷ined in plenary terms, and all legislative restrictions compelled

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to pass rigorous constitutional standards.

This seems to be what has happened in Canada with freedom of expression. The Supreme Court of Canada de꡷ined expression broadly to cover any attempt to convey meaning, from commercialadvertising to ‘the imagery of a sexual gadget’ (Irwin Toy at 606–608; R v Butler at 472). Allexpressions are accorded, at least ostensibly, equal constitutional protection. Thus, theconstitution is taken to have entrenched the right of the tobacco company, RJR‐MacDonald, toadvertise tobacco in the same terms as it protects the citizen’s right to criticise his or her

government (RJR‐MacDonald ; see the critique in Hiebert 1999b: 10–15). Even if commercialexpression has social utility (and it undeniably does), what compelling reason is there to subject its regulation to constitutional constraints normally reserved for political or artistic expression?

If the rights are taken as minimal standards, some dimensions of expression can be left tounencumbered legislative control. The constitutional rights can be de꡷ined as basic guarantees,not all‐encompassing codes of expression.

Judicial deference to legislature or Executive in the limitation of rights

Courts can also leave room for legislative or Executive participation through judicial deference,the courts deferring, on some questions, to the judgment of the legislature or Executive. Underthis model, a court does not insist that the legislature conform in all respects to the judge’s ownopinion. The court recognises that there can be legitimate differences of view, and allows thelegislature some latitude. This kind of deference is common in judicial review of administrativeaction, where courts have often recognised that administrative tribunals, as the primary decisionmakers, should be permitted to develop their own interpretations of law. After all, legislatureshave conferred decision making power on the tribunals, often because the tribunals possessspecial expertise. The courts have expressed this deference in a variety of ways, depending onthe drafting of the legislative regime. But a common formulation is that the courts should not intervene unless a tribunal’s decision is manifestly unreasonable.

Deference is controversial in the area of rights protections, however. Human rights are generallyconsidered to be supervening norms that should stand beyond all legislative or Executivecontrol. Their very purpose is to constrain government. It makes no sense (on this view) forcourts to defer to their judgments. The Supreme Court of Canada has, for example, distinguishedbetween constitutional and legislative norms in describing its deference towards administrativetribunals, holding that it wants to hear what administrative tribunals have to say about constitutional issues, but it will in the end make up its own mind (Cuddy Chicks v Ontario at 129–130).

At the same time, the Court has indicated that it will exercise some deference towards thelegislatures in its judgments on limitations of rights, when those limitations involve theevaluation of sociological fact or the balancing of multiple interests, on the grounds that legislatures are equally or better placed to make those judgments. This has compensated, tosome extent, for its expansive de꡷inition of such rights as freedom of expression. The rights may

be de꡷ined broadly, but legislatures are given latitude in their limitation.12 Using this deferenceto compensate for an over‐broad interpretation generates tensions, however, for on the onehand it appears to weaken the protection of things that genuinely should be rights, and on theother it continues to treat things that should not be rights as though they were worthy of constitutional protection. In Canada, that tension came to the fore in RJR‐MacDonald (at 88 andfollowing), where the Supreme Court drew back from the previous extent of its deference tolimitations on advertising.

Nevertheless, signi꡷icant deference continues. The Court has even upheld legislation that wasconsciously framed, by Parliament, on the basis of the judgments of dissenting, not majorityjustices, in a previous Charter decision. In the ꡷irst decision, the Supreme Court had divided 5‐4on the circumstances in which a person accused with sexual assault must, in the preparation of his defence, have access to the records of rape counsellors who had supported the victim in theaftermath of the alleged assault (R v O’Connor ). The dissent had argued for a much stricter scope


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of disclosure. Parliament clearly preferred the dissenting judgment, and framed legislation that departed in material ways from the majority’s position ( An Act to amend the Criminal Code(Production of records in sexual offence proceedings) (Canada)). In a subsequent challenge, theSupreme Court upheld that legislation, on the grounds that Charter decisions always left open arange of permissible responses, and that Parliament was entitled to listen to the voices of partiesother than the courts (in this case, those vulnerable to sexual violence) when framing theirresponses. The Court focused primarily on the seriousness with which Parliament hadconsidered the rights concerns, and speci꡷ically invoked the idea of dialogue in justifying that

degree of deference (R v Mills, especially at 19–20 and 37 and following).13

Framing norms

The interpretation of rights usually proceeds upon the assumption that one can, in theory,describe precisely what rights require and what they proscribe. It may well be impossible to doso in advance — adjudication tends to elaborate norms case by case, as the court is confrontedwith the circumstances in which the norms operate — but in principle rights are susceptible of detailed statement. This assumption may not hold true of all guarantees, however. Some rightsmay be incapable of detailed elaboration. Their normative content may operate at a purelyabstract level, compatible with a wide range of detailed instantiations. These norms are called

‘framing norms’, for they provide a framework of entitlement without specifying precisely what that entitlement entails (Webber 2000b: 75–76).

One of the best examples of a framing norm is the indigenous right to self‐government, which

has been widely discussed but not yet recognised in Canada.14 It is unrealistic to think that self‐government could ever be reduced to a highly speci꡷ic set of requirements enforced by thecourts. Its elements remain irreducibly abstract: the ability of indigenous peoples to participatein institutions that govern their communities; the right to have governmental institutions re꡷lect norms determined in the community; the capacity of the community to control matters centralto indigenous identity. The precise means by which these objectives could be achieved are asvarious as the communities themselves. Judicial review of such norms therefore takes a

distinctive character. Instead of seeking to render the requirements progressively more explicit,it begins with the legislative measures under review, considers them in the light of the broadstandards implicit in the norm, and decides simply on the basis of the broad standards whetherthey conform or not.

Framing norms are not as uncommon as they might appear. Indeed, to some extent all normshave an element of framework about them, for no matter how explicit they are made through theprocess of interpretation, they never address a speci꡷ic case in all its particularity. At the last stage of any judgment, the judge must decide how the case falls in relation to the rule, usingmuch the same approach as that described above. The difference between framing norms andother norms lies in the fact that in the former, one no longer expects to be able to render the

norms increasingly concrete. Rather, one accepts that they will remain permanently abstract andone is content to work with that abstraction.15

The recognition of a class of ‘framing norms’ does make a difference. To take one example, in aseries of cases in the late 1980s the Supreme Court of Canada held that the Charter’s guaranteeof freedom of association included no special protection of the right of workers to bargaincollectively. The Court came to this decision even though freedom of association had commonlybeen used, in international conventions, to refer to workers’ rights of collective action ( ILOConvention No 87 ). The principal reason for the Court’s decision was its concern that the phrase,‘freedom of association’, could not have been intended to constitutionalise Canada’s highlydetailed collective bargaining regime. It noted that other countries had adopted very different

forms of workers’ control (Re Public Service Employee Relations Act ; PSAC v Canada; RWDSU v Saskatchewan). This reasoning is right as far as it goes. It would indeed be inappropriate to holdthat the labour relations regime of the 1980s had been frozen in constitutional stone. But at thesame time, the Court’s decision deprived freedom of association of one of its principalcontemporary elements. The problem may have lain in the Court’s assumption that Charter


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rights had to be interpreted in a manner that progressively developed a single, precise,determinate content to the right, and that only that content could have normative force. Instead,freedom of association, insofar as it relates to workers’ collective action, may be best conceivedas a framing norm, establishing a principle at a level of abstraction only, leaving wide latitude to

legislatures as to how the right might be ful꡷iled.16

Framing norms have become much more familiar in recent years as a result of the development of the European Union. The European Commission’s directives take this form. They do not

stipulate the measures that governments must adopt. They establish broad objectives and leaveto governments how those objectives might be achieved.

For the purposes of this article, the chief signi꡷icance of framing norms is that they presuppose asubstantial measure of collaboration — of dialogue — between courts and legislature in thepractical de꡷inition of rights. The courts set the framework; the legislature determines themeans.

Nonjusticiable norms

Finally, courts may simply ꡷ind that some norms are not susceptible to judicial review and leave

them entirely to the political process. Some norms (such as the commitment to equalisationpayments between governments in s 36 of Canada’s Constitution Act 1982) may expressly set aside judicial review; these are the ‘programmatic rights’ discussed previously. But it is alsopossible that the courts might ꡷ind that other provisions do not give rise to judicial review, eitherbecause a different remedy is speci꡷ied or because the subject matter of the right is held simply

to be inappropriate for judicial determination.17 In either case the de꡷inition of the right wouldbe left within the legislative realm.

Mechanisms for legislative and Executive involvement in the de inition and enforcement of rights

Finally, there are many mechanisms by which the legislature and Executive can themselvesshape the meaning of rights.

Democratic participation

Most importantly, the very existence of democratic government and popular participation servesto protect rights. Constitutional lawyers tend to think of rights entirely in terms of constraint —and speci꡷ically constraint of the legislature — but without doubt, the most powerful bulwark of rights in a democracy is broad participation by an engaged citizenry in the business of government. That participation contributes to the articulation of rights through the prominent role that rights play in parliamentary debate and Executive decision making. The ability to

petition, to question one’s government, and to seek to change governments constitute powerfulmeans of challenging abusive conduct and vindicating rights claims. It is profoundly wrong —indeed dangerously so — to believe that rights must operate only by constraining democraticaction.

Legislative/Executive enforcement

Moreover, the responsibility to enforce constitutional protections has at times been conferreddirectly on the legislature and Executive, rather than courts. This is true, for example, of theguarantees in the Canadian Constitution Act 1867 with respect to religious schools. Althoughschools are normally under provincial jurisdiction, those guarantees provide that an appeal fromany act or decision ‘affecting any Right or Privilege of the Protestant or Roman Catholic Minorityof the Queen’s Subjects’ lies to the Federal Governor‐in‐Council (the Federal Cabinet). If theCabinet’s order is not obeyed, the Federal Parliament is empowered to pass remedial legislation(Constitution Act, 1867 , s 93(3) and (4)). The Fourteenth Amendment to the Constitution of theUnited States (adopted following the Civil War to entrench the equality of the former slaves) also

provided for Congressional action to enforce its terms.18 Legislative enforcement is particularly

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useful when trying to protect the rights of minorities within complex public institutions, wherejudicial remedies may prove inadequately ꡷lexible or incapable of creating detailed remedialadministrative regimes.

Legislatures have also pursued rights within their own jurisdictions, enacting declarations of rights and establishing commissions for their enforcement. Undoubtedly, in Canada, the practicalimpact of these measures on the lives of individuals has far outstripped the effect of the Charter,for they apply to private as well as public action and guard against discrimination in

employment, in housing, and in a host of other day to day contexts. The doctrines developedunder these regimes have also had a signi꡷icant impact on the interpretation of the Charter,notably in the concept of discrimination adopted by the courts (see, for example, Andrews at 16–19).

Prior examination and review

Constitutional Bills of Rights also stimulate a measure of self‐scrutiny on the part of thelegislature and Executive. This helps to ensure that legislation is kept within constitutionalbounds. It may also furnish careful discussions of rights, which may in turn in꡷luence the courtsif the legislation is subsequently challenged.

The self‐scrutiny can occur in a myriad of places — in law reform commissions, administrativetribunals, the decisions of ombudsmen, and so on. In Canada, there has also been a structuredprocess for reviewing legislation to ensure compliance with the Charter. In the periodimmediately following adoption of the Charter, existing legislation was examined and amendedto bring it into conformity with the law of꡷icers’ understanding of the Charter’s requirements.Indeed, the entry into force of the equality guarantee in the Charter was delayed for three yearsto allow this process to occur. Now, as part of the regular procedure for drafting new legislation,

each law is scrutinised to ensure it conforms (Department of Justice Act (Canada), s 4.1).19

The standards applied internally can be more demanding than those applied by the courts, the

law of꡷icers taking a more expansive de꡷inition of the rights. This can happen haphazardly, as lawof꡷icers make the wrong guess as to the interpretation that will ultimately be adopted by thecourts. But sometimes governments purposely disagree with the courts’ interpretation. A goodexample occurred in relation to Ontario’s Sunday closing legislation. That law prescribed Sundayas the common day of rest in the retail sector. There were exceptions, notably one designed toaccommodate individuals whose religious beliefs speci꡷ied a day of rest other than Sunday,although this exception was restricted to stores under a certain size. The Supreme Court of Canada upheld the restriction as establishing an acceptable balance between the proprietors’beliefs and the interests of the employees (R v Edwards Books). Yet, under a new government, theOntario legislature amended the law so that the religious exemption was no longer limited by

the store’s size.20

Arguments in justi ication

As already noted, the Canadian Charter itself implicitly invites governments to justify theirlegislation as part of Charter challenges. They sometimes do this in anticipation. They do it inargument before the courts.

Legislatures have also, in substance, re‐enacted legislation that has been invalidated by theSupreme Court of Canada, or have enacted legislation that appears at variance with the reasonsof the majority of the Court, advancing renewed justi꡷ication under s 1. They have therebyexpressed their disagreement with the Court’s decision and forcefully re‐engaged the debate

over justi꡷ication. Of course, by declining to use s 33 and relying instead on s 1, they have left theultimate decision on validity to the courts. But in at least one such case — the enactment of provisions to limit the circumstances in which an alleged victim’s rape counselling recordswould be released to the accused (discussed above) — Parliament’s arguments have been

successful (R v Mills).21


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Government consideration of rights concerns, as part of its exercise in justi꡷ication, can thereforehave an impact, at times dramatic, on the practice of judicial deliberation.

Political pressure on judicial decision

Finally, there is one last set of mechanisms by which governments can in꡷luence theinterpretation of rights: direct political pressure.

We generally think of these mechanisms as being plainly antagonistic to rights, not contributingto any sort of ‘dialogue’. They often strike us as illegitimate exercises of power, almost certainlyimpairing the rights of individuals. This caution is wise. Judicial decision making is distinctive inits acute attention to the individual case, so that decisions are made in a manner sensitive to thesituation, thereby doing justice (as far as human fallibility permits) to the interests of theindividuals concerned. Political argument rarely attends so carefully to the individual case. If legislatures or Executives made all the decisions, we would run the risk of losing sight of individuals’ interests in our rush to achieve a social aim. Our defence of judicial independenceand due process is therefore a profoundly important principle.

But the fact remains that mechanisms for political pressure do exist, and they are deployed(among other things) in disputes over the meaning of rights. They include ꡷ierce politicalcriticism, pressure on the resources of the courts, the packing of courts, physical intimidation,forced removal, and ultimately constitutional amendment. Some of these mechanisms arelegitimate in the sense that they are expressly contemplated by the Constitution — such aspowers of judicial appointment, or the requirements for constitutional amendment. Nor aretheir effects always bad. They are sometimes used, it appears in retrospect, on the side of theangels. This was true, for example, of Franklin Delano Roosevelt’s court packing plan, which maywell have in꡷luenced the US Supreme Court to overturn its doctrine of substantive due process,thus paving the way for the New Deal legislation (Tribe 2000: 1360–1361). Their contribution,then, is not unremittingly negative, although we generally do well to assume the worst.

But despite the evil or ambivalence of their effects, we should remember them. They bring homethe fact that no matter how we insulate the judicial role, the relationship is one of institutionalinteraction, not complete autonomy. Realising that, we can work to structure the interaction inthe most appropriate manner, including establishing protections for judicial autonomy.

Moreover, in a backhanded way, recognising the existence of these forces relativises and clari꡷iesour claims about judicial review. I noted at the beginning of this paper that justi꡷ications forjudicial review frequently rely on the need to guard against the grossest of abuses. There is a realquestion, however, whether judicial review is much of a bulwark when a political system decaysto such a desperate degree. Even if the courts do stand up (and history shows that they often do

not),22 the political process has levers at its command to overcome the courts if the democratic

ethic of rights protection is absent. This is not an argument for ignoring the potential for abuse,nor is it an argument against human rights adjudication in normal times. But it does suggest that the remedies to gross abuses lie within a broader social/political approach, and that judicialreview needs to be justi꡷ied in terms of its relative contribution in normal, not abnormal times.This too drives us back upon the analysis of interaction, relationship and balance.

Dialogue in three strategies for human rights protection

There are therefore a wide array of mechanisms to provide for institutional dialogue in thede꡷inition and enforcement of rights. Nor is this account exhaustive. The reader will doubtlesshave added his or her own examples.

In this section, I will examine in more detail three means of rights protection — all employed inCanada, one in Australia — to assess the form of institutional relationship created. Themechanisms are:

• implied rights;



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• express constitutional guarantees, subject to legislative derogation; and

• a statutory Bill of Rights, protected by a manner and form requirement.

I will focus primarily on the second and third, citing the ꡷irst principally by way of contrast.

Implied rights

As mentioned above, this mechanism involves the determination that certain rights are implicit in the Constitution. Commonly, the rights are founded upon constitutional terms that establishdemocratic institutions (from which rights to political free speech are derived) or establish thecourts (from which norms to protect judicial independence are derived). This is certainly thecase in Australia, where the High Court has recognised a right of free political expression,working off the provisions establishing representative government in the AustralianConstitution (notably ss 7 and 24, which state that members of the Senate and House of Representatives are to be ‘directly chosen by the people’). In the ꡷irst of these cases, Brennan J(as he then was) summarised the essential argument (Nationwide News at 48–49):

... where a representative democracy is constitutionally entrenched, it carries with it those legalincidents which are essential to the effective maintenance of that form of government. Once it is

recognised that a representative democracy is constitutionally prescribed, the freedom of discussion which is essential to sustain it is as ꡷irmly entrenched in the Constitution as thesystem of government which the Constitution expressly ordains.

This right was used to strike down laws that prohibited criticism of members of the IndustrialRelations Commission and that limited television advertising in elections (Nationwide News Pty Ltd v Wills; Australian Capital Television Pty Ltd v Commonwealth). It also prompted the HighCourt to revise the law of defamation insofar as it applies to criticism of public of꡷icials(Theophanous v Herald & Weekly ; Lange v Australia Broadcasting Corporation).

Other rights too might be implied from the Constitution. In McGinty v Western Australia, the

Court considered whether the Western Australian Constitution required rough equality in thedetermination of electoral boundaries (so that each person’s vote would be of approximatelyequal value). The Court refused to ꡷ind such a requirement. The High Court has declined to holdthat a general right of equality can be derived from the Federal Constitution (Leeth v Commonwealth; Kruger v Commonwealth). But other principles with strong rights implicationshave been implied. In both Australia and Canada, the courts have developed constitutionalguarantees of the independence of the judiciary, from which additional limitations have beenderived: in Canada, judicial review of the jurisdiction of administrative tribunals has beenconstitutionalised on this basis; in Australia, the principle of the separation of powers has beenused to strike down a law designed to keep a named offender in preventative detention beyond

the end of his original sentence.23

Implied rights involve the ꡷inding that rights have been constitutionally entrenched, but do so ina particularly con꡷ined way. They do not directly promote dialogue between legislature andcourts — they do not involve any special interaction between court and legislature in thede꡷inition of rights — but they do tend to leave substantial latitude to the legislature.

Implied rights are con꡷ined by the very fact that they are based on implication. There is nogeneral, unambiguous statement of the rights. The courts must, above all, establish that therights are entrenched, even though the document makes no reference to them. There is oftendisagreement over the standard to be applied when ꡷inding an implied right: does the right haveto be necessary to any reasonable interpretation of the text, or is it suf꡷icient that it be broadlycongruent with the Constitution’s principles? There is the problem of distinguishing between, onthe one hand, a mere assumption on which a constitutional provision is based and, on the other,a true implication, in which the assumption itself is constitutionally protected ( Australian Capital

Television at 135, per Mason CJ).24 Moreover, the very fact that an implied right is not express,yet has such a signi꡷icant impact on legislative authority, encourages judicial restraint. Courts are

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less likely to fall prey to one common hazard of constitutionalised Charters of Rights — thetemptation towards maximal rather than minimal de꡷initions of rights.

Finally, an implied right always depends upon cues in the text, and this limits the range of rightsthat can be implied. The rights tend to be political, strongly tied to the integrity of publicinstitutions. Hence, they protect political speech (on the basis that the Constitution establishesrepresentative government) but not artistic speech. In Australia, an implied guarantee of equality foundered precisely because the right claimed was general and sweeping, lacking a

clear constitutional touchstone (Leeth; Kruger ).

Implied rights therefore have a restricted scope, tightly tied to the express provisions of theConstitution. They tend to be focused solely on political freedoms. And because the rights areinferred, because they are derivative, never primary, and because they are the product of complex interpolation, there is always the potential for adjustment into the future. Theselimitations are virtues if one believes that constitutionally entrenched guarantees should berestricted to truly fundamental principles, dealing with the citizen’s political relationship to thestate.

Express rights, subject to derogation

Under implied rights, judicial review has a restricted role simply as a result of the allusive andambiguous form in which the rights are expressed (or unexpressed). In the second mechanismfor rights protection examined here — express rights subject to derogation by the legislature —the rights are stated just as they are in any constitutionalised Bill of Rights, but they are thensubject to legislative derogation: the legislature can choose to override them in a mannerexpressly provided in the constitution.

The Canadian Charter of Rights and Freedoms is the principal example of this strategy. Section 33of the Charter reads in part:

(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or

of the legislature, as the case may be, that the Act or a provision thereof shall operatenotwithstanding a provision included in s 2 or ss 7 to 15 of this Charter.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is ineffect shall have such operation as it would have but for the provision of this Charter referred toin the declaration.

Certain conditions limit the use of the override, although the section itself keeps these to aminimum and the courts have been reluctant to ꡷ind that more exist by implication. First, theoverride is only applicable to certain rights (those found in ss 2 and 7–15). Paradoxically, thesetend to be the most broadly accepted rights, including freedom of religion, freedom of

association, freedom of expression, rights arising in the context of criminal proceedings, andequality. The chief exclusions are rights to vote and, signi꡷icantly, mobility rights and of꡷iciallanguages. The last two exclusions give a clue to the rationale underlying the choice to include orexclude. Mobility rights and language rights were highly controversial among a number of provinces at the time of the Charter’s adoption, the former because of potential interferencewith provincial policies with respect to economic development and absentee ownership, thelatter because of Quebec’s desire to require the use of French in certain contexts. At the sametime, the Federal Government was intensely committed to both sets of provisions as ways of requiring both economic integration and bilingualism. The override excluded precisely thoserights most likely to be subject to derogation.

Secondly, any invocation of s 33 is subject to a ꡷ive year sunset clause. At the end of ꡷ive years, thederogation lapses (although it can be re‐enacted inde꡷initely). This requires that derogations bejusti꡷ied repeatedly, at periodic intervals. Five years was chosen as the period because that coincides with the maximum term of any government.

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Super꡷icially, s 33 of the Canadian Charter is similar to the ‘notwithstanding’ clause in theCanadian Bill of Rights, the statutory Bill which I introduced above and will discuss furtherbelow. Each clause apparently permits the legislature to derogate, and in each case, derogationmust be express in the derogating act itself, in order to trigger a popular debate in which thegovernment will be compelled to justify its actions. Indeed, in this respect the Canadian Bill of Rights served as the model for s 33 of the Canadian Charter. But in another respect, the twoinstruments are very different. In a statutory Bill of Rights, it is the very ability to derogate that renders the Bill effectual; that capacity transforms the Bill from what would be an invalid

constraint on the substance of legislation to one of procedure only. Paradoxically, then, it is thevery ability to set the rights aside that renders the statutory instrument binding on laterlegislation. In the Charter, on the other hand, the rights are constitutionally entrenched; theycontrol, of their own force, all legislation. There, the notwithstanding clause does nothing but allow the legislature to set the rights aside.

In the Charter, s 33 was a compromise between parliamentary sovereignty — the Britishconstitutional doctrine that treats the legislature as the supreme branch of government — andjudicial review. At the time of patriation of the Canadian Constitution in the early 1980s, thegovernments of Saskatchewan and Manitoba opposed the inclusion of an entrenched Charter of Rights precisely because they believed it would shift decision making from the legislature to the

courts. Saskatchewan’s left leaning Government cited the US constitutional doctrine of substantive due process (which had impeded the adoption of much social legislation up to the1930s), as a reason for limiting the powers of judicial review. Those provinces agreed to theCharter only on condition that it include a clause permitting legislatures to derogate from itsguarantees. Section 33 was therefore adopted precisely because of misgivings, among some

governments, about rights review.25 The section has been seen by many (not least in Canada), asinconsistent with the very idea of a Charter of Rights. Some have argued that it should beremoved (see Russell 1991: 301–302; Mandel 1994: 87 and following; Hiebert 1999a: 31–32).

Such a stark opposition is unfortunate, however. There is a justi꡷ication for the notwithstandingclause — perhaps the best justi꡷ication — that sees it as establishing an appropriate balance

between courts and legislature, through the facilitation of dialogue between those institutionswith respect to rights. According to this view, s 33 is not anti‐rights; it simply allows thelegislature to participate in their interpretation and application (Weiler 1984: 79–92; Russell1991).

The justi꡷ication starts from the premise that there can be legitimate differences over thede꡷inition of rights. There is reason, then, to provide an outlet through which alternativeunderstandings of rights can be advanced and defended. This is especially true when, underentrenched Charters of Rights, courts’ interpretations can be very dif꡷icult to correct (the usualmechanisms being revision by the courts themselves or constitutional amendment).

It also recognises that different types of institutions carry different advantages — and different biases — in rights de꡷inition (Webber 1993: 218 and following; 2000a: 137–144). Courts excelat the sober analysis of speci꡷ic claims in a manner that pays close attention to individuals andthat is isolated (though only in relative terms) from broader political concerns. They areespecially effective where all considerations relevant to a particular dispute are well de꡷ined, sothat interests are crystallised and the parties implicated are known and represented. Theydepend, in their procedure, on parties appearing before them and arguing all relevant considerations. They have great dif꡷iculty dealing with issues in which interests are widelydistributed, so that no one party has suf꡷icient interest to appear and the only viable proceduralapproach would involve inquiry and investigation. Courts focus overwhelmingly on protectionagainst government interference, not positive action by government to advance the interests of

individuals or groups, for judicial review is conceived (rightly) as a restraint on government action, rather than the assertion of an alternative or complementary governmental authority.The net effect of this, however, is that judicial review tends to privilege private over publicaction, for only the latter is subjected to Charter scrutiny. Finally, courts do best when theinterests are simply aligned — when the dispute takes a bipolar (with two opposed positions)

http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s33.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s33.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/


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rather than polycentric form (where a multitude of competing interests need to be balanced).The former accords most closely to courts’ adversarial procedures, in which, paradigmatically,two parties contend, marshalling their own sets of evidence. Indeed, because of their adversarialprocedure and their bias towards the restraint of government, courts are prone to simplifyrights claims so that they conform, as closely as possible, to a bipolar form — the individualpitted against the state — even when the state may simply be serving as a stand‐in for thebroadly distributed interests of individuals in society at large.

Legislatures have strengths and weaknesses that broadly correspond to those of courts. They aremuch better at dealing with polycentric issues and with widely distributed interests. They haveprocedures well adapted to investigation and inquiry. They are able to act positively, deployingresources to attain ends rather than standing back to let the situation be determined by the playof private forces. Those advantages come with disadvantages. Legislatures can respond to aperceived balance of interests — or to a strongly articulated majority interest — in a mannerthat has insuf꡷icient regard for minorities or individuals. Because they work by majority rule,they can weigh all individuals’ self‐de꡷ined interests equally, when some interests may deserveadded weight because of their fundamental character (religious beliefs; freedom of expression;the freedom to associate; mobility rights). In their pursuit of general social interests, they canlose sight of the particular situation of individuals.

Section 33, it might then be argued, achieves an appropriate balance between the bene꡷its of thelegislature and those of the courts in the de꡷inition of rights. It provides for judicial review on afull array of rights concerns, but it also allows legislatures to have the last word if they disagreefundamentally on how rights have been de꡷ined and applied. Even then, rights concerns arehighlighted because of the requirement that the legislature be explicit in its intention to overridethe Constitution’s declaration of rights. This triggers democratic scrutiny, which only thestrongest justi꡷ication is likely to surmount.

This may be the best justi꡷ication for s 33, but in practice the section has been less thansuccessful at fostering a productive dialogue. It has been used in seventeen situations (although

in one the act was never proclaimed in force). The experience has been decidedly mixed. The useof s 33 has been concentrated in few hands. The province of Quebec was responsible forfourteen of the seventeen instances; although other jurisdictions have from time to timevehemently disagreed with Charter decisions, all except Alberta have tended, in recent years, toshy away from s 33 and to use renewed justi꡷ication under s 1 instead. Moreover, in a great manyinstances, the use of s 33 has escaped public notice almost entirely. Were it not for the recent work of Tsvi Kahana, thirteen of those instances would have remained in utter obscurity

(Kahana 2000: 255–291)26.

Quebec was the ꡷irst jurisdiction to use the clause. In June 1982, soon after the proclamation of the Charter , it passed a law invoking s 33 with respect to all existing Quebec statutes ( An Act

Respecting the Constitution Act 1982 (Canada)). It then proceeded to insert a comparable clausein each subsequent act. This was done to protest against the patriation of the Constitution overQuebec’s objections. The Quebec Government, under the indépendantiste Parti Québécois, hadparticipated in the negotiations leading up to patriation, but had ultimately rejected the packageagreed to by Ottawa and the other provinces. Quebec took the position that it should be able toveto constitutional reform, given that it was the only province with a French speaking majority.When patriation proceeded regardless, it opted out of the new Charter to the maximum extent possible (Webber 1994: 113 and following).

This use of the notwithstanding clause was highly unusual, focused as it was on the legitimacy of the constitutional order as a whole. The blanket use of the clause was challenged in Ford v

Quebec, the plaintiffs arguing that the wording of s 33 contemplated a more precise or explicit derogation. They suggested that a valid derogation should occur only after the courts had ruledon

webber, jeremy. institutional dialogue between courts and legislatures in the definition of...

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