The Legitimacy of Judicial Review

• Author: Robert J. Sharpe; Kent Roach
• Pages: 27-47

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CHAPTER 2

THE LEGITIMACY OF

JUDICIAL REVIEW

There has been a lively debate in Canada, particularly since the enact-

ment of the Charter of Rights and Freedoms in 1982, regarding the

legitimacy of judicial review. Although judicial review on federalism

grounds has been a featu re of the Canadian con stitution since the early

days of Confederation, the tradition of parliamentary supremacy re-

mained 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 judi-

cial review on federalism grounds, but the Charter of Rights and Free-

doms 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 ap-

parently 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 per-

son 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

THE

CHARTER OF R IGHTS AND FREEDOMS

28

exhaustively gra nts legislative power to either the federal Pa rliament 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 de-

cision striking down a law is that, unless resort is had to the “override”

clause or if a new law can be justif‌ied under section 1, 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 be

noted later in Chapter 7, the procedure for a constitutional case is more

or less the same as that used for a property or contracts dispute be-

tween two private parties. The same judges decide the constitutional

issue as decide the private dispute, and in theory, they decide the con-

stitutional issue on grounds similar to those that apply to the private

dispute. It has become increasi ngly obvious, however, that many, if not

most, Charter issues involve matters of value and public policy quite

different in nature from the questions formerly posed to the courts. It

is not surprising to f‌ind many observers asking whether it is legitimate

to give unelected and unaccountable judges a def‌initive say on these

vitally important and highly controversial matters. In particular, some

have questioned the qualif‌ications of the lawyers who sit on the bench

to decide political, moral, and philosophical controversies.

From a formal perspective, there is a clear answer. As the Supreme

Court itself has pointed out, the judges did not ask for the Charter of

Rights and Freedoms nor for the powers that the Charter confers upon

them.1 The enactment of the Charter and t he decision to confer a broad-

er mandate upon the courts was the conscious choice of the elected

1 In Reference Re s 94(2) of the Motor Vehicle Act (BC), [1985] 2 SCR 486, 24 DLR

(4th) 536, Lamer J states at 497 (SCR):

It ought not to be forgotten that the h istoric decision to entrench t he Charter

in our Constitut ion was taken not by the courts b ut by the elected represen-

tatives of the p eople of Canada. It was those repre sentatives who extended

the scope of const itutional adjudication and entr usted the courts wit h this

new and onerous resp onsibility. Adjudication under the Charter must be ap-

proached free of any l ingering doubts as to its leg itimacy.

See also Vrie nd v Alberta, [1998] 1 SCR 493, 156 DLR (4th) 385 at paras 131–32,

Iacobucci J [Vriend].