D. Judicial Review

• Author: Patrick J. Monahan - Byron Shaw
• Pages: 21-23

Page 21

When an individual seeks to challenge the validity of government action before the courts, that person is usually described as an applicant for judicial review. The individual argues that there was no legal authority for the decision or action and that it was therefore unlawful. However, there are two different kinds of arguments that the individual might make to reach this conclusion.

The first is to claim that the decision or action was unauthorized because it failed to comply with the terms or requirements of the law under which the government was acting. The principle of the rule of law requires that all government decisions be authorized by law - either statute law or common law - in order to be valid. For example, suppose that a statute provides that a police officer can search private premises after obtaining a search warrant from a judge. Suppose, further, that the police searched certain premises without obtaining a warrant. The owner of the premises could challenge the decision on

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the basis that the police failed to obtain a warrant, as required by the statute. The search was outside of the authority of the statute and therefore unlawful, and the officials who carried it out committed a trespass on private property. This kind of argument is non-constitutional in the sense that it does not seek to challenge the constitutional validity of a statute or other legal rule. Rather, the argument is focused on the terms of the law itself and the applicant claims that the government action exceeded the authority conferred. This kind of legal challenge, which does not raise a constitutional issue, might be termed ordinary or non-constitutional judicial review.

Suppose, however, that the example was slightly different and that the police had complied in all respects with the requirements of the statute, including the obtaining of a warrant. The owner of the premises might still be able to challenge the legality of the search through "constitutional" judicial review. In this kind of challenge, the owner would argue that the statute that authorized the search was itself invalid because it was inconsistent with a provision that was constitutionally entrenched in section 52 of the Constitution Act, 1982. For example, a statute authorizing searches could be challenged on the basis that it is inconsistent with section 8 of the Charter, which protects individuals from unreasonable search and seizure. The owner is now making a...