PHILOS 1B03 Lecture Notes - Lecture 5: Section 33 Of The Canadian Charter Of Rights And Freedoms, Peter Hogg, Pass Laws
1 Sep 2016
School
Department
Course
Professor
Friday, October 2 , 2015
Philosophy 1B03
Judicial Review and Constitutional Rights
•Problem: rights are the subject of reasonable disagreement in the community
•Charter rights are vaguely worded — “majestic generalities”
•Counter-majoritarian critique
•Tyranny of the majority
•Courts are not democratic institution — appointed judges are undemocratic
Strong-form Judicial Review
•Strong — court can declare laws inconsistent and so invalid (“strike down”) (US)
•Judicial decisions can be overcome only by amending the Constitution
Weak-form Judicial Review
•court can declare inconsistency (UK, NZ) but must apply the law
•Inconsistency only addressed if legislature chooses to amend or repeal the law
•UK experience — declarations almost invariably followed
•Legislature choice to keep the law or to change it
A Canadian Compromise?
Court can declare law inconsistent and invalidate it
But legislature may reverse decision with ordinary legislation
No need to amend the Constitution — can pass another law to manipulate and have a policy
law that the court approves
Dialogue Theory
•Coined by Peter Hogg and Alison Bushell 1997
•Not a theory of interpretation
•No normative content
•Attempt to explain/justify Canadian judicial review model — almost impossible to re-legislate
in Canada
•Says that most judicial decisions striking down laws are not final’ new legislation usually
passed
•Legislature can pass law to achieve same purpose following judicial decision striking down
law because of S-1 (Judicial Interpretation: allows to pass laws that establish limits on rights.
avoids absolute rights)
•Or legislature can pass the same law using the notwithstanding clause, SS-33
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