There are a variety of defences of judicial review. These include the ideas that judicial review is necessary to protect the fundamental principles of democracy; that judicial review is necessary to protect rights; and that judicial review can be justified on the basis of the intent of the democratically enacted framers of the constitution. Finally, there has been support for the idea that judicial review is part of a democratic dialogue that involves not only the courts but also legislatures and society.
One of the best defences of judicial review is the argument that the entrenchment of constitutional rights is consistent with the fundamental principles of democracy. There is a strong argument that democracy cannot be explained simply in terms of majority rule and that adherence to certain fundamental values and principles is necessary for democracy to flourish.19An obvious example would be judicial review to protect the right to vote, a right that "underpins the legitimacy of Canadian democracy and Parliament’s claim to power." The right to vote has been
robustly defended by the courts "unaffected by the shifting winds of public opinion and electoral interests" against legislative curtailment.20
Should majorities be entitled to deny that right to certain members of society, without having to justify the decision other than by the force of their numbers? The power of judicial review, requiring demonstrable justification for decisions to limit rights, enhances, rather than detracts from, democratic values. Similarly, free and open debate of public issues is essential to democracy, and the exercise of the power of judicial review to protect the fundamental freedoms of expression, opinion, and the press can be seen as enhancing and reinforcing democracy. Majorities of the day have a tendency to try to suppress the expression of unpopular views that threaten the status quo. Judicial review serves to bolster democratic values by requiring reasoned justification for laws that limit the rights of those who hold views diverging from the prevailing wisdom of the day. As noted in Chapter 1, even before the introduction of the Charter, the Supreme Court, at times, protected freedom of expression on the basis that it was necessary for democracy.
Other fundamental freedoms, less directly implicated in the democratic process, are nonetheless essential if democracy is to flourish. The values of individual dignity, autonomy, and freedom of choice, reflected in the freedom of religion and equality and in the protection of life, liberty, and security of the person, are preconditions to individuals being capable of making independent, intelligent, and informed decisions. Judicial intervention to protect these values against incursions by majoritarian actors may be seen as enhancing and protecting democracy rather than undermining it. Chief Justice Dickson made this point when striking down a law that infringed on freedom of religion: "The ability of each citizen to make free and informed decisions is the absolute prerequisite for the legitimacy, acceptability, and efficacy of our system of self-government."21In a similar vein, decisions of the courts protecting minorities or other vulnerable groups may be defended on the basis of democratic principle.22Judicial review, from this perspective, is justified to protect those whose voices are not adequately heard in political debate because they are too few or too unpopular. It is argued that judicial review strengthens democracy by ensuring that the rights and interests of all citizens are protected. The Supreme Court of Canada has been particularly active in defending the legal rights of those accused of crimes, as
well as the equality rights of minorities under section 15 of the Charter. This aspect of judicial review is also reflected in the manner in which the Court has interpreted existing Aboriginal and treaty rights, which are guaranteed in section 35 of the Constitution Act, 1982.23The minority-language education rights in the Charter have also been interpreted liberally by the Court.24Perhaps even more significant was the Court’s initial interpretation of the equality guarantee, section 15 of the Charter. It stressed that the focus for equality review must be upon historic patterns of discrimination and disadvantage, an interpretation that included explicit reference to the need to protect those vulnerable groups who lack an effective voice in majoritarian politics. In the leading decision, the Court held that a law prohibiting non-citizens from being admitted to the legal profession was contrary to the guarantee of equality and justified interfering with the majoritarian decision to exclude non-citizens by an appeal to basic democratic principles:
Non-citizens, to take only the most obvious example, do not have the right to vote. Their vulnerability to becoming a disadvantaged group in our society is captured by John Stuart Mill’s observation in Book III of On Liberty and Considerations of Representative Government that "in the absence of its natural defenders, the interests of the excluded is always in danger of being overlooked . . ."25The Court reiterated this theme in a 1998 decision holding that Alberta’s human rights legislation, which failed to protect gays and lesbians, violated the guarantee of equality:
Democratic values and principles under the Charter demand that legislators and the executive take these [democratic attributes] into account; and if they fail to do so, courts should stand ready to intervene to protect these democratic values as appropriate. As others have so forcefully stated, judges are not acting undemocratically by intervening when there are indications that a legislative or executive decision was not reached in accordance with the democratic principles mandated by the Charter.26The above justification for judicial review is sometimes called a "process-based" approach, since the main function of the Charter is seen
to be the checking of malfunctions in the operation of the democratic process. The underlying assumption is that Parliament and the legislatures should be left with considerable scope to make determinations about the shape of public policy, but that the Charter allows the courts to intervene where the political process is deficient in some way.27
Another justification offered for judicial enforcement of a charter of rights emphasizes the central importance of rights protection to...