A. Justification for Judicial Review - Federalism

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

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The legitimacy of judicial review on federalism grounds has been challenged, but this practice is perhaps more readily justified than is judicial review under the Charter. A federal system needs a referee to resolve jurisdictional disputes that cannot be sorted out through the ordinary political process. The federal structure of government represents a conscious decision to allocate functions between national and regional governments and to divide responsibility for certain legisla-

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tive subject matters accordingly. Situations where the political actors will not be able to resolve their differences about jurisdiction are bound to arise - hence the need for some specified body to settle the matter according to the principles established by the constitution. Canadian courts have not hesitated to wield the power of judicial review on federalism grounds, striking down many laws, both federal and provincial. While some scholars have argued that the resolution of jurisdictional disputes could be the responsibility of a non-judicial political authority,4their arguments have been unpersuasive.5Nevertheless, controversy has, at times, surrounded particular decisions of the courts on the division of powers between the federal and provincial authorities. For example, judicial invalidation of federal attempts to implement a "New Deal" to regulate the economy during the Great Depression of the 1930s produced widespread criticism. Unlike the Charter, the division of powers is not subject to legislative override, and the eventual response to judicial decisions holding that the federal government could not implement the New Deal was a constitutional amendment to give it jurisdiction to legislate in relation to unemployment insurance, as well as the commencement of a process that abolished appeals to the highest court at the time - the Judicial Committee of the Privy Council. In the 1980s, there was also controversy over natural resources, which again resulted in constitutional amendments. Despite these controversies, the appropriateness of the courts exercising the power of judicial review is generally well accepted.6An important factor contributing to the acceptance of judicial review in the area of federalism has been the development of interpretative doctrines designed to minimize intrusion into legislative decision making. The emphasis upon purpose over effects limits judicial review significantly, avoiding a situation where the...

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