The Canadian Charter of Rights, adopted in 1982, provides another version of weak-form review, notably labeled ‘dialogic’ by the leading Canadian constitutional scholar Peter Hogg and one of his students. As with the other documents I have discussed in this chapter, the Charter lists fundamental rights. Two provisions create weak-form review in Canada. Section 1 provides that right guaranteed by the charter are subject to ‘such limitations as are demonstrably justified in a free and democratic society’. Section 33 provides that Canadian legislatures can make statutes effective, for renewable five-year periods, notwithstanding their inconsistency with a large number of important charter provisions (nota de subsol 15: voting, mobility, and language rights are excepted). These provisions license two kinds of legislative response to the constitutional interpretations offered by the courts.
Consider a regulation of commercial expression – for example, a regulation of advertising for sweetened cereals, whose target audiences are children. The Court says that the goal of promoting health by diminishing children’s consumption of sweetened cereals is a permissible one, but concludes that the regulation as enacted sweeps within its coverage too much expression that need not be regulated in order to accomplish a significant reduction in consumption.
How can the legislature respond?
The Section 1 response is this: Bolster the record supporting the legislation so that it provides a better – a more ‘demonstrable’ – justification for the statute’s scope. For example, the legislature might compile evidence, if it can, showing that narrowing the statute’s scope would make it much more difficult to administer effectively, by requiring regulatory agencies to draw lines that they are not competent to draw, or that any wording that would narrow the statute’s scope to accommodate the Court’s concerns would actually leave advertisements on the market that contribute significantly to the demands children make on their parents. Note, though, that the Section 1 response takes the Court’s interpretation of the charter to be correct, and disagrees only with that interpretation’s application to the statute.
In contrast, the idealised Section 33 response does involve a dialogue about constitutional meaning. To continue the example, the Parliament might enact a Section 33 override of the Court’s decision because, in the legislature’s view, the charter’s provisions dealing with freedom of expression are simply inapplicable to commercial speech. This use of section 33 response would be predicated on a disagreement between the Court and the legislature over what the Charter means, not merely over how it should be applied.
(Weak Courts, Strong Rights, Princeton University Press, 2009, la pp. 31-33)