B. Concerns about Judicial Power under the Charter

• Author: Robert J. Sharpe - Kent Roach
• Profession: Court of Appeal for Ontario - Faculty of Law, University of Toronto
• Pages: 31-34

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More controversial is judicial review under the Charter, which clearly puts the courts in the position of overruling the democratically elected representatives of the people on value-laden questions of public policy. Many critics argue that an entrenched bill of rights undermines democratic debate and decision making. In Peter Russell’s words, "[t]he principal impact of a charter on the process of government can be neatly summarized as a tendency to judicialize politics and politicize the judiciary."⁹He goes on to say:

The danger here is not so much that non-elected judges will impose their will on a democratic majority, but that questions of social and political justice will be transformed into technical legal questions and the great bulk of the citizenry who are not judges and lawyers

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will abdicate their responsibility for working out reasonable and mutually acceptable resolutions of the issues which divide them.¹⁰The fear is that litigation in the courts will replace open public debate on important issues of public policy.

Other critics add a concern about the lack of judicial expertise in many of the areas litigated. In view of the relative resources and expertise of judges vis-à-vis legislatures and bureaucracies in making decisions on complex issues, these critics denounce the use of Charter litigation to make determinations affecting important policy matters involving difficult trade-offs between competing interests.

Still other critics point to the vagueness and indeterminacy of constitutional language as a reason for concern about judicial review. Words such as "liberty," "equality," and "reasonable limits" are so open-ended, it is argued, that judges cannot help but infuse the constitution with their own values. Critics express concerns that judges will use the open-ended nature of the Charter to increase their own power and impose their own views.¹¹Why, it is asked, should we trust nine Supreme Court judges with the task of delineating the meaning of those phrases for a diverse society, rather than leave such issues to be resolved through open legislative debate?

This criticism of judicial review is shared by those from the left, who worry that judicial decisions will tend to favour liberal values hostile to an interventionist state, especially where the state intervenes to promote greater equality among groups and classes. For example, Andrew Petter has written:

First, we must bear in mind what has just been...