Constitutional cosiness and legislative activism

I Introduction The first thing I noticed when I sat down to read Janet Hiebert's new book, Charter Conflicts: What Is Parliament's Role?, was the photo of Canada's Parliament Buildings on the cover. In the photo, Parliament is inaccessible, partially obscured, and elusive. Inaccessible, because it is behind a fence, and we see it through the cracks. Partially obscured, because we don't see the entire building - only the Peace Tower and part of the roof of the Centre Block. Elusive, because the part that we do see is not the part where things happen. The tower is there to demonstrate power, stability, and watchfulness, and the roof is a necessary structure for the building below. But we do not see the chambers and offices where laws are actually made. Thus we see portions of the Parliament Buildings; we see nothing of Parliament itself. Two of the elements in the picture - the fence and the Peace Tower - seem to convey a subtle message from the author: 'Yes, I realize that Parliament has always seemed inaccessible to constitutional scholars, and particularly constitutional lawyers (the fence), but let me show you how beautiful it is (the tower).' The third (non-) element of the picture - that it does not reveal where law-making actually takes place - might symbolize one of my criticisms of this book: I think that the constitutional theory it seeks to introduce does not fit the way laws are actually made in Parliament in Canada. The uniqueness of Hiebert's photo of Parliament was especially striking to me when I recalled that Parliament was also on the cover of another constitutional law book published in the same year: the 2002 student edition of Peter Hogg's Constitutional Law of Canada.1 Hogg's Parliament is much more conventional: we still see only about half of the Centre Block, but there is no fence, and we see both the Tower and the [End Page 129] main building. Hogg's photo of Parliament does make the point that constitutional law in Canada is as much about Parliament as it is about the courts. However, in terms of Hogg's Parliament itself, the view is very trouble free: no mystery here. Comparing Hogg and Hiebert - first the photos, then the arguments - is a good starting point for this essay. In his famous 1997 essay 'The Charter Dialogue between Courts and Legislatures,' Hogg, together with Alison Bushell, makes an empirical argument about the consequences of the Canadian Charter of Rights and Freedoms2: they argue that, as a general rule, Parliament - and legislatures generally - does have the final word in Charter matters.3 Their argument is not about legislatures but about the legitimacy of judicial review: if legislatures get their way, then judicial review does not interfere with the political process as much as its critics argue. Like the photo of Parliament on Hogg's book, this argument is straightforward. It takes Parliament as is, makes no attempt to penetrate it, and makes the observation that, in most cases, Parliament has the last word in constitutional issues. Hiebert takes this argument one step further. Much like her picture of Parliament, Charter Conflicts tries to figure Parliament out and to invite us in. Hiebert argues not that Parliament regularly has the last word, but that giving Parliament the last word is often not a bad idea. Indeed, she contends, sometimes Parliament should be more vigilant in asserting its last word. If Hiebert's argument is successful, then the combination of Hogg's empirical argument and her normative argument makes for a comprehensive account of what might be called 'legislative constitutionalism' in Canada. Unfortunately, my main contention in this essay is that Hiebert's argument is not successful. Charter Conflicts is composed of nine chapters, which could be grouped into two sections: the normative framework (chapters 1-3) and the case studies (chapters 4-9). The first section contains chapters...

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