Weak Courts, Strong Rights by Tushnet Mark

Author:Tushnet, Mark
Language: eng
Format: epub
Publisher: Princeton University Press
Published: 2009-11-15T00:00:00+00:00

CHARTER PROOFING

Janet Hiebert has identified one process—Charter proofing—that might push ministers to propose legislation that is so clearly within constitutional bounds that their statements of compatibility will be obviously correct. The term is derived from practice in Canada under the Charter, but the phenomenon—on the analogy to “weatherproofing”—can exist in any weak-form system.

Charter proofing has two components, one attractive from the point of view of advocates of weak-form review, the other less so. Both components arise from bureaucratic risk aversion, in the form of a desire to avoid public embarrassment for the minister whom the civil servants assist. Public embarrassment has two forms. The first results from criticism in the press and by the public. Here risk aversion can offset to some degree the ease with which almost any legislative proposal can be accommodated to the requirements of modern constitutions, with their general and abstract descriptions of protected rights. To avoid public criticism, civil servants will take care that draft legislation falls well within constitutional bounds.

This sort of bureaucratic caution is not cost-free. It might lead to the sacrifice of some of the minister’s policy goals, as proposals are trimmed back, and thereby made a bit less effective, to keep them away from the constitutional boundaries rather than pressing up against those boundaries. Avoiding public embarrassment, though, has benefits too, particularly in eliminating controversy that might impair the government’s ability to pursue other parts of its policy program. Charter proofing of this sort seems to me no different from bureaucratic risk aversion based on fear of public criticism on the ground that the proposal goes somewhat too far as a matter of policy.

The second form of public embarrassment arises from weak-form judicial review itself, and, as Hiebert stresses, undermines the very case for weak-form review. In this version, civil servants Charter-proof legislative proposals by predicting what the courts will say about them. They do not want their minister to be embarrassed by a judicial declaration of incompatibility or unconstitutionality, particularly after the minister made a statement of compatibility in introducing the legislation. Yet, one of the virtues of weak-form review is that it makes transparent the fact that constitutional provisions can be given competing, reasonable interpretations. In the eyes of defenders of weak-form review, the interpretations offered by courts in such systems should be given no special weight simply because they are offered by courts rather than by ministers. Charter proofing with the courts in mind, though, does give the courts’ interpretations special weight. As Hiebert puts it, when this sort of Charter proofing occurs, “Parliament is not really contributing to judgment about the reasonable reconciliation of Charter conflicts.”145 It is simply predicting—and perhaps not very well—what the courts will do when the legislation is brought before them.

Hiebert suggests, albeit tentatively, that the bad form of Charter proofing has become prevalent in Canada. In part this may result from the important role generalist lawyers in the Department of Justice play in Charter proofing. That department has a Human Rights Centre

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