Boundaries of Judicial Review: The Law of Justiciability in Canada.

• Position: Book Review

Scarborough: Carswell, 1999. Pp. xxxii, 246.

This book canvasses the still-elusive idea of justiciability in Canada. It also advocates the establishment of more predictable and practical rules, together with just norms, to guide judges. The author begins with an overview of the law of justiciability in Canada, establishing negatively what it is not, then placing it into the context of separation of powers and comparative approaches, referring to the law of justiciability in the United Kingdom and the United States. In the next three chapters he discusses three doctrines typically used to evaluate justiciability: remoteness, mootness, and political questions. In the fifth chapter Sossin examines the procedural dimensions of justiciability. He then draws some insightful conclusions in the final chapter concerning the search for a Canadian doctrine of justiciability.

The author suggests that justiciability goes to the heart of many issues that define the role of the judiciary in today's political and social order. Stuck between English and American approaches to judicial review, the Canadian judiciary has struggled to define its position clearly. It has maintained a delicate balance by drawing on English and American traditions, while respecting the parameters of its traditional functions as conceived by the Constitution Act, 1867 and the Supreme Court Act. The main difficulty tests in reaching agreement on what is meant by justiciability, as the precise definition is not entirely clear. According to Sossin, three criteria can be used to determine justiciability: the capacities and legitimacy of the judicial process, the nature of the dispute, and the constitutional separation of powers. The idea of "appropriateness" has emerged as a prevalent theme in Canadian jurisprudence to describe justiciability.

Sossin suggests that confusion surrounding justiciability reached new heights with the introduction of the Constitution Act, 1982, and specifically, section 52, the supremacy clause. According to Sossin, since the enactment of the Constitution Act, 1982, the judiciary can no longer be appropriately described as a subordinate branch of government. To guard the guarantees enshrined in the Canadian Charter of Rights and Freedoms effectively the judiciary has been reconceptualized as an independent institution, neither superior nor inferior to the other branches of...