Reforming the Supreme Court

Canada also has a constitutional court, the Supreme Court of Canada, which resolves questions about the validity of legislation within the framework of the constitution, including the power of judicial review – that is, the power to declare legislation null and void in whole or in part, on the grounds that it is “inconsistent” with the constitution (to use the wording of s.52 of the Constitution A [...] Even Peter Hogg – a supporter rather than a critic of the Charter project and the Supreme Court’s preemptively important role – delicately admits that judges "have a great deal of discretion in 'interpreting' the law of the constitution, and the process of interpretation inevitably remakes the constitution into the likeness favoured by the judges."18. [...] On the face of it, the words protecting freedom of expression in the American Bill of Rights and the Canadian Charter are similar enough that one could not predict from the words alone which of the two countries would make free speech preemptively important and which would be much readier to accept policy-driven reasons for restricting it.19 Similarly, compare the German Basic Law and the Canadian [...] Judges handle these issues by saying (on the one hand) that the answers are to be found in the very words of the constitution even though (on the other hand) they completely dismiss out of hand the most direct and unambiguous indications as to what the drafters of those words intended them to mean.22. [...] Rather, Charter decisions are typically of two types: first, it is a question of balancing two different rights (for example Seaboyer23, one of the Supreme Court’s most controversial and immediately unpopular decisions, balancing the rights of victims against the right of the accused to a fair trial); or second, it is a question of some limited and secondary side effect of legislation that on the