ISSN 1062-7421
Vol. 12 No. 8 (August 2002) pp. 394-397

CHARTER CONFLICTS: WHAT IS PARLIAMENT'S ROLE? by Janet L. Hiebert. Montreal and Kingston: McGill-Queen's University Press, 2002. 285 pp. Cloth $70.00 ISBN: 0-77352-399-5. Paper $27.95 ISBN: 0-77352-408-8.

Reviewed by Roy B. Flemming, Department of Political Science, Texas A&M University.

Let's start with the bottom line. What is Parliament's role in the interpretation of Canada's Charter of Rights and Freedoms? Janet Hiebert, an associate professor of political science at Queen's University, concludes that the role of Parliament is to "take seriously the obligation to render responsible judgment, particularly when rights are affected" (p. 227). Don't dismiss this seemingly unremarkable answer too quickly. Hiebert's important and in some ways innovative book presents a strong argument for adopting a Canadian variant of Madison's coordinate review of constitutional law. In her view the political challenges of interpreting the Charter demand Parliament's involvement. If Parliament ducks its duty to direct the path of Charter law by responding to Supreme Court decisions in a circumscribed, risk averse manner, Parliament will, as Hiebert puts, "get the kinds of judicial rulings it deserves" (p. 227). Her argument rests on five detailed case studies of Charter questions involving primarily the federal government and the Supreme Court. As she admits, however, the lessons she draws from these stories reflect her normative
position that Parliament and the Court have a shared responsibility for resolving Charter conflicts.

Hiebert agrees with the aspirations enunciated in the Charter and she does not mistrust the judiciary. At the same time, though, she worries that an exclusive reliance on the judiciary to define, amplify, and expound on the Charter's meaning may lead Parliament to renege on its responsibilities. The usual Charter conversation, she regrets, revolves around a "judicial-centric" emphasis that focuses on judicial independence and the countermajoritarian difficulty. The recent emergence of a dialogic perspective of the Charter at first blush seemed to improve the situation by taking Parliament into account. However, Hiebert's enthusiasm for this perspective soon waned as she realized that even as a metaphor the notion of a dialogue misconstrues the ways the Supreme Court and Parliament
actually communicate with one another. Another way of thinking about the Charter, Court, and Parliament was needed.

Hiebert proposes a "relational approach" to the Charter as an alternative to these views. This approach is chiefly concerned with the interpretative processes involving the Charter, not judicial activism per se or even judicial-legislature interactions. Charter values trump these pedestrian concerns. The centerpiece of the relational approach, of course, is that Parliament shares responsibility for interpreting the Charter with the Court. The process is interactive and unlike other approaches it does not incorporate a particular technique that promises correct

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answers to Charter questions. Nor does it presuppose consensus or agreement between the Court and Parliament. Instead, given the distinct institutional characteristics of the two bodies, the relational approach recognizes that they will produce inevitably different interpretations of the Charter. This approach makes an empirical claim ("where you stand depends on where you sit") but as formulated by Hiebert it also incorporates a normative prescription. Parliamentary and judicial judgments should "be guided by a degree of modesty about the superiority of their conclusions and by respect for the other's contrary interpretation,"
a respect that arises from a "sincere effort to understand the reasons and motivations" for the contrary interpretation (p. 52).

Hiebert's relational approach builds on historical and institutional realities in Canada. She underscores the significance of the Canadian Bill of Rights, a disappointing experiment from the sixties, because it sought to make legislation more sensitive to rights questions. To this end, the justice minister was required to review all bills and report to Parliament those that were inconsistent with the Bill of Rights. This reporting mechanism provided the political incentive to incorporate rights concerns
into the legislative process. The advent of the Charter raised the stakes of this ministerial review and expanded the role of the ministry's Human Rights Law Section. The government, in a nutshell, is now deeply and routinely involved in rights questions, assessing whether legislation passes Charter muster and the risks of judicial review. Sections 1 and 33 of the Charter also created opportunities for Parliament's involvement. Section 1 allows limits on certain rights as long as Parliament can
demonstrate to the Supreme Court these infringements are consistent with a free and democratic society. Section 33 gives Parliament the authority to override the nullification of a law for five years notwithstanding the Court's declaration that it violates the Charter. For these reasons, it is empirically myopic to focus exclusively on the Supreme Court as chief interpreter of the Charter; the scope of the relational approach is thus set deliberately broader.

The five stories at the center of Hiebert's book reveal the varied ways the Court and Parliament have interacted in Charter conflicts. Hiebert astutely analyzes the choices the two bodies made, the alternatives they ignored or set aside, and the consequences of their actions or inactions. These are stories about mistakes, misunderstandings, occasional hubris, and, sometimes, unwarranted political caution, as well as the times when the Court and Parliament get things right. Hiebert is reluctant, however, to extract patterns from the stories that might serve as descriptive models of judicial-legislative relationships. Instead, she stresses that the
Court and Parliament "should respect the role and different perspectives that the other brings to its judgment" (p. 65) which amounts to an admonishment for civility but not an explanation for when civility is likely to prevail or when it will fail. Given the normative framework of her book, silence on this matter may be understandable but it is nevertheless disappointing since a critical issue for the relational approach is the need to define the empirical nature of these relations.

The closest Hiebert gets to this issue is the distinction she urges between core rights and peripheral rights. The background for this step is the Supreme Court's protection of commercial speech under the Charter; the decision nullified a ban on tobacco advertising and is included as one of her case studies. Hiebert disagrees

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with the Court. She feels it needlessly crimped parliamentary authority and distorted the policy preferences of Parliament. Core rights include those fundamental freedoms in a democratic society that make the exercise of power a matter of consent and not coercion. Parliament's ability to limit these rights accordingly should be strictly limited and difficult to achieve. (It is worth noting here that Canada's War Measures Act under which hundreds of Quebec citizens were arrested and detained without charge during the "October Crisis" of 1970 was exempt under the Bill of Rights but not the Charter of Rights and Freedoms.) The balance of authority in judicial-parliament relations therefore teeters on whether core or peripheral rights are in question.

Parliament's burden of proof is much higher when it infringes on a core right, and the Court is expected to have the final word unless Parliament exercises its override option through the notwithstanding clause of section 33 of the Charter. When peripheral rights are limited by Parliament, the Court's role is less decisive and Parliament is supposed to have its way if it can demonstrate its actions are appropriate in a free and democratic society. Section 1 of the Charter creates the legal context for this relationship; a section Hiebert analyzed with authority in an earlier book (Hiebert 1996). One problem with distinguishing between rights is that
the Supreme Court of Canada rejected the idea of a hierarchy of Charter rights in DAGENAIS v. CANADIAN BROADCASTING CORPORATION (1994), although some commentators conclude the Charter includes one (e.g. Hogg 1997). It is not clear, despite Hiebert's acknowledgement of the Court's position, if she
thinks this obstacle can be overcome or more importantly what it means for her argument if the Court sticks to its guns.

A second problem is that Hiebert too often elides another distinction that is vital to her argument, namely that the government (i.e., the Cabinet, Prime Minister's Office, and Privy Council Office), the majority party caucus, official opposition, and Parliament as a whole are not politically synonymous. She knows this, of course. For example, she points out, "It is virtually impossible for Parliament…to ascertain the quality and influence of the process of evaluating government bills…due to the secrecy and confidentiality that govern the executive Charter-vetting process" (p. 14). In Canada's Westminster system, the government of the day, especially when it has a strong majority, dominates Parliament. Moreover, the two committees in the House and Senate most likely to deal with legislation
raising Charter concerns do not have sufficient time or information for independent judgment. The result is that the committees take the word of the Justice Minister.

Hiebert asserts a "salutary benefit" of the relational approach is that it would "improve the quality of scrutiny" by Parliament on the use of power affecting Charter rights. Uttering lacking from her book, though, is any discussion in depth of the conditions or incentives that might change the status quo she describes and move it in the direction she prefers. Other than good will, why would any government of the day give up its power over Charter-vetting, drop its typically risk averse strategy of Charter-proofing laws based on close readings of judicial tea leaves to reduce the risks of successful challenge, expand legislative participation to include backbenchers and the opposition, and increase the resources of the committees

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regarding the Charter? Also, if these changes were to occur, how can we be sure this more open process will be consistently reflective, self-critical, sincere, modest in its goals, and respectful of the Supreme Court? Court bashing is not as common in Canada (although it is not unheard of) as in the United States or Australia, but what is to prevent it from occurring more often once Parliament has the chance?

Many readers will surely share Hiebert's sentiments about Parliament's role in the development of Canada's Charter. Her book stirs up the conversation about the Charter that in a way had fallen into a rut. Yet a book that so carefully and profitably reconstructs the events and circumstances of Charter conflicts to remonstrate on behalf of parliamentary involvement should not be mute on how it might be achieved or maintained. It might be objected that Hiebert did not set out to write a
manual on political strategy and reform. So be it. Still, to recast slightly Madison's phrase in Federalist 51, unless judges and politicians are angels, there is a need to think harder and more specifically about the nature and evolution of norms that would best govern how politicians in Parliament and the justices on the Supreme Court can jointly interpret Canada's Charter of Rights and Freedoms.

REFERENCES:

Hiebert, Janet L. 1996. LIMITING RIGHTS: THE DILEMMA OF JUDICIAL REVIEW. Montreal and Kingston: Mc-Gill and Queen's University Press, 1996.

Hogg, Peter W. 1995. CONSTITUTIONAL LAW OF CANADA. Toronto: Carswell, 1997.

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Copyright 2002 by the author, Roy B. Flemming.