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Although the Canadian Charter of Rights and Freedoms is twenty years old, little is known about how it affects those who wield power, what influence it has on legislative decisions, or to what extent the government believes it should be constrained by Charter concerns. For most laws Parliament has the final word on how social policy is balanced against protected rights. Thus the extent to which legislation is sensitive towards rights depends on how those who develop, propose, and assess policy view the Charter. How influential are governmental legal advisors? How risk averse or risk tolerant are government ministers when pursuing legislative goals that may result in Charter challenges? How capable is Parliament in requiring government to justify and explain legislative choices that may impair rights? In Charter Conflicts Janet Hiebert examines these questions while analyzing the Charter's influence on controversial legislative decisions such as social benefits for lesbians and gay men, the regulation of tobacco advertising, the rules of evidence for sexual assault trials, the use of DNA for law enforcement purposes, and the rules for police searches of private residences. She questions the broadly held assumption that only courts are capable of respecting rights, arguing that Parliament shares responsibility with the judiciary for resolving Charter conflicts. She views the Charter's significance less in terms of the judiciary overruling Parliament than in the incentives and pressures it provides for public and political officials to satisfy themselves that legislation is consistent with protected rights

AbstractCommentators and critics often invoke the metaphor "Charter proofing" to emphasize how much the Charter and judicial review have influenced legislation. This metaphor implies that proposed legislation is evaluated carefully for its consistency with Charter rulings as a condition of passage because decision makers believe legislation should respect judicial interpretations of constitutional norms and/or because they engage in risk-averse behaviour out of self-interest to minimize the likelihood that legislation could subsequently be challenged and declared unconstitutional. However, it is not clear that the federal government is as worried about having legislation declared invalid as many assume. If this is so, federal government responses to the Charter raise an interesting puzzle. The government has both the resources and the institutional capacity to anticipate judicial concerns and integrate judicial norms into legislation to minimize the likelihood of having legislation declared unconstitutional. So why does it not act in a more risk-averse manner at the outset, in order to protect legislation from the possibility of judicial invalidation? This address offers a five-part explanation to this puzzle that emphasizes the significance of political strategizing about risk.

Canada has contributed an important idea to constitutional thought about how to conceive of legislative responsibilities under a bill of rights. This idea, which can be referred to as legislative rights review, suggests that rights should become a core consideration when evaluating proposed legislation. The idea has been borrowed by several other parliamentary jurisdictions, despite the fact that it has never functioned effectively in Canada. The paper argues that Canada should revisit the benefits associated with legislative rights review, and discusses reforms to revitalize how it operates in Canada, which are influenced by the United Kingdom's adaptation of the idea of legislative rights review.

This article contests the widely held view that an effective bill of rights requires judicial interpretation of rights to prevail over political judgement. Most bills of rights reflect classical liberal assumptions that premise freedom and liberty on the absence of state intervention. Yet they govern modern welfare states that presume and require substantial state involvement, seen to various degrees as facilitating rather than restricting the conditions for robust and equal citizenship. Judges cannot provide answers that are so definitive or persuasive to questions about whether social policy is reasonable in terms of human rights that they rule out other reasonable judgements. Although these concerns are often used to justify rejecting a bill of rights, this article takes a different position. It argues that a political community can benefit from exposure to judicial opinions on whether legislation is consistent with rights, but should also encourage and expect parliament to engage in legislative rights review. The article discusses how three parliamentary systems have attempted to infuse more concern for rights in their processes of decision making, and concludes with suggestions on how legislative rights review can be strengthened.

AbstractIn 1996 the Alberta Court of Appeal struck down election spending limits for individuals, interest groups, corporations and unions for violating the Canadian Charter of Rights and Freedoms. These spending restrictions were part of a complex regulatory regime which sought to promote fairness by controlling the election spending of candidates and parties. Although this decision was not appealed to the nation's highest court, the Supreme Court disapproved the Alberta ruling in an unrelated decision. This suggests that spending limits are justifiable under the Charter. Yet if new legislation is not introduced, the Alberta decision will continue to govern election conduct throughout the country and could undermine the democratic ideal of citizens participating in fair terms in the act of self-governance.