HeinOnline Adds Official Canada Supreme Court Reports
HeinOnline recently added the official Canada Supreme Court Reports to its basic subscription, beginning with volume one (1876). While the entire collection is of potential interest, volumes published since 1982 are of particular interest to constitutional law comparativists. In that year Canada “patriated” its constitution, formerly the British North America Act, 1867, and added to it the Canadian Charter of Rights and Freedoms, which is analogous to the U.S. Bill of Rights. The new constitution conferred on the Canadian Supreme Court the power to interpret the provisions of the Charter, leading to the advent of constitutional judicial review, previously unknown in the British Commonwealth. The Canadian Supreme Court’s subsequent jurisprudence is of great interest to American comparativists because it addresses many of the same issues that have come before the U.S. Supreme Court during the same period.
Canadian constitutional judicial review is also of interest as an early example of “weak form” judicial review. In deference to the doctrine of parliamentary sovereignty, article 33 of the Charter granted federal and provincial parliaments the power to override certain substantive Charter rights, and to enact non-conforming legislation “notwithstanding” those provisions. This so-called “notwithstanding clause” preserves the power of parliament to negate the effect of Supreme Court judgments invalidating federal or provincial legislation.
The relationship between parliaments and the Supreme Court under article 33 has spawned an avalanche of scholarship, much of which has helped shape critical reception of human rights acts, which have become popular throughout the Commonwealth during the past 20 years. Examples include the New Zealand Bill of Rights Act (1990) and the British Human Rights Act (1998). Each of these statutes transposes international human rights norms into municipal law, and grants to courts the power to issue non-binding declarations of incompatibility when national legislation is challenged as non-compliant with those norms. In particular, a theory of democratic dialog between courts and legislatures, first developed in the Canadian context, has evolved even further to describe the relationship in Commonwealth jurisdictions with human rights acts.
For those interested in more information, a good encyclopedic article on the Canadian Constitution, as well as the current, consolidated text are available in Constitutions of the Countries of the World. The standard treatise on Canadian Constitutional Law is Constitutional Law of Canada, 5th ed. (2007 -) by Peter Hogg . The seminal article on democratic dialogue, by Hogg and A.A. Bushell, “The Charter Dialogue Between Courts and Legislatures (or Perhaps the Charter of Rights Isn’t Such A Bad Thing After All”, 35 Osgoode Hall L. J. 75 (1997), is available in HeinOnline. The New British Constitution (2009), by Vernon Bogdanor, is a recent authoritative text on the classic Diceyan model of British constitutional law, including a discussion of the modern doctrine of parliamentary sovereignty.