The Canadian Charter of Rights and the minister of justice: Weak-form review within a constitutional Charter of Rights

Abstract

In a series of influential works, Mark Tushnet has questioned whether the “parliamentary” approach to bills of rights that exist in Canada, New Zealand, and the United Kingdom can strike a middle ground between constitutional supremacy and judicial supremacy. In the case of Canada, Tushnet argues that the failure to employ the notwithstanding clause and the reluctance of parliamentarians to confront the judiciary account for the instability of weak-form review and Canada’s transition to strong-form review. Although the notwithstanding clause has not been a significant aspect of weak-form review in Canada, the Charter has not transitioned to strong-form review. Four variables explain this: first, legislative reversal of judicial decisions through simple statutory amendment, a practice we label as “notwithstanding-by-stealth” to distinguish this practice from the formal use of section 33; second, the structure of the Justice portfolio and its fusion of justice and attorney general within a single department and parliamentarian; third, the lack of transparency in the reporting duty of the minister of justice that significantly reduces the need to employ the formal instruments of weak-form review; and finally, the Supreme Court of Canada’s acceptance of legislative reversal of its Charter jurisprudence as evidence of dialogue with Parliament.