The legitimacy of judicial review

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

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There has been a lively debate in Canada, particularly since the enactment of the Charter of Rights and Freedoms in 1982, regarding the legitimacy of judicial review. Although judicial review on federalism grounds has been a feature of the Canadian constitution since the early days of Confederation, the tradition of parliamentary supremacy remained strong until the advent of the Charter. In that tradition, there are no constraints upon what Parliament can do, and it is thought that Parliament is the best place to achieve an appropriate balance between individual rights and freedoms and the broader public interest. This principle had always been qualified in Canada by the practice of judicial review on federalism grounds, but the Charter of Rights and Freedoms added significantly to the judiciary’s power.

Under the Charter, the questions put to judges involve issues of value and moral choice, which are not only more open-ended and apparently less constrained by strict legal principles, but also of greater significance to the average citizen than those relating to federalism. For example, does the right to life, liberty, and security of the person in section 7 include a woman’s right to choose whether to have an abortion? Does the right to freedom of expression include the right to spread hatred against particular racial or religious groups? Can the government deny benefits or marital status to couples who are of the same sex?

The result of a Charter decision can also be more significant than one made on federalism grounds. Because the Canadian constitution

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exhaustively grants legislative power to either the federal Parliament or the provincial legislatures, the result of a decision holding that, say, a province cannot enact a certain law will almost inevitably be that the federal government can. On the other hand, the result of a Charter decision striking down a law is that, unless resort is had to the "override" clause, neither level of government can enact exactly the same law. Hence, a Charter decision can have a much more telling impact upon the scope for legislative choice.

The debate over the legitimacy of judicial review is fuelled by the fact that the Canadian judicial system in general, and the adjudication of constitutional cases in particular, are premised on the assumption that questions coming before the courts are legal rather than political and as such are to be decided strictly upon legal grounds. As will...

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