Peter Hogg on Constitutional Law
Peter Hogg kind of fell into teaching constitutional law, when no one else wanted to teach the course at Osgoode Hall Law School. I found this anecdote amusing from the ex-New Zealander at his recent talk for the Toronto Association of Law Libraries. In 1971, Hogg and Canada was in a vastly different landscape, as the texts covered the political aspects of federalism during tumultuous times. He saw a gap in the scholarship that did not examine the role of the crown and courts; themes of responsible government and civil liberties. His interest in these areas evolved into writing the classic legal text “Constitutional Law of Canada.” Fast forward to 1982 and again the landscape has changed dramatically as the constitution is repatriated and there is a lot of discussion about it and the Charter of Rights.
The period following the repatriation of the Constitution, up to 1986, saw more than 500 cases fighting over equality provisions in the Charter of Rigts come before the Supreme Court (SCC). Currently the SCC handles about 30 cases per year as a comparison. Some critics say commercial cases should also be heard. Hogg also addressed the claim that the SCC is an activist body, because it upholds group rights with Charter of Rights. According to Hogg, it seemed more activist than the Warren Court in the United States (1953-1969) which debated civil liberties. These impressions led Hogg to examine judicial review in a democracy, if the elected Parliament had been bypassed by SCC’s decisions.
Hogg completed a study about the “legislative sequel” of Charter cases. In 1997, he found that 66 statutes were struck down, because they breached provisions in the charter in some way. Of this number, more than 2/3 of laws enacted to resolve the impasse were followed by enactment of laws that had the same intent as the law that was struck down by the Supreme Court of Canada. In effect, the Supreme Court of Canada may have the final legal answer, but it is may not match what the lawmakers do. This study was repeated with the same results subsequently.
In conclusion Hogg says Canada has weaker judicial review than at first glance. Parliament still enacts laws despite controversial SCC rulings. The Supreme Court of Canada upholds the Charter of Rights as a check in the balance of group, individual and state rights. It does not prevail over Parliament, as the SCC gives a definitive legal answer but this may not align with Canadian society. Parliament, as our elected body, still refines legislation to reflect Canadian society.
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