The Legitimacy of Judicial Review

AuthorRobert J. Sharpe; Kent Roach
There has been a lively debate in Canada, particularly since the en act-
ment of the Charter of Rights and Freedoms in 1982, regarding the
legitimacy of judicial rev iew. Although judicial review on federalism
grounds has been a feature of the Canadian Constitution since the
early days of Confederation, the trad ition of parliamentary supremac y
remained strong until t he 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 right s and freedoms and the broader public interest. This
principle had always been qual if‌ied in Canada by the practice of judicial
review on federalism grounds, but the Charter of Rights and Freedoms
added signif‌icantly to t he 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 st rict legal principles but also of greater signif‌ica nce
to the average citizen tha n those relating to federalism. For example,
does the right to life, liber ty, 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 al so be more signif‌icant than
one made on fede ralism g rounds. Because the Canadi an Constit ution
exhaustively grants legislative power to either the federal Parlia ment
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 h and, the result of a Charter
decision striking down a law is that, unles s resort is had to the “over-
ride” clause or if a new law can be just if‌ied 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 legis-
lative choice.
The debate over the legitimacy of judicial rev iew is fuelled by the
fact that the Canad ian judicial system in general, and the adjudication
of constitutional case s in particular, are premised on the assumption
that questions coming before the court s are legal rather than political
and, as such, are to be decided strictly upon legal grounds. As will be
noted in Chapter 7, the procedure for a constitutional case is more or
less the same as t hat used for a property or contracts dispute between
two private parties. The same judges decide the const itutional issue
as decide the private dispute, and, in t heory, they decide the consti-
tutional issue on grounds si milar to those th at apply to the private
dispute. It has become increasi ngly obvious, however, that many, if not
most, Charter is sues involve matters of value and public policy quite
dierent in nature from the quest ions formerly posed to the courts. It
is not surprising to f‌ind many observers aski ng whether it is legitimate
to give unelected and unaccountable judges a def‌initive say on these
vitally import ant 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 controversie s.
From a formal perspective, there is a clear answer. As the Supreme
Court of Canada itself has pointed out, the judges did not ask for the
Charter of Rights and Freedoms or for the powers that the Charte r confers
upon them.1 The enactment of the Charter and the decision to confer
a broader mandate upon the courts was t he conscious choice of the
elected representatives of the people. In 1982, the Constitution was
1 In Reference Re s 94(2) of the Motor Vehicle Act (BC), [1985] 2 SCR 486, 24 DLR
(4th) 536 [Re BC Motor Vehicle Act], 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 represent-
atives of the people of Ca nada. It was those repres entatives who extended
the scope of const itutional adjudication and entr usted the courts wit h this
new and onerous resp onsibility. Adjudication under the Char ter must be
approached 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 [Vrie nd].

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