The Legitimacy of Judicial Review

AuthorRobert J. Sharpe; Kent Roach
Pages29-50
29
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 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 qual if‌ied 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 st rict legal principles but also of greater signif‌ica nce
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
exhaustively grants legislative power to either the federal Parliament
THE CHARTER OF R IGHTS AND FREEDOMS30
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 “over-
ride” 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 legis-
lative 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 in Chapter 7, the procedure for a constitutional case is more or
less the same as that used for a property or contracts dispute between
two private parties. The same judges decide the constitutional issue
as decide the private dispute, and, in theory, they decide the consti-
tutional 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
dierent 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 of Canada itself has pointed out, the judges did not ask for the
Charter of Rights and Freedoms or for the powers that the Charter confers
upon them.1 The enactment of the Charter and the decision to confer
a broader mandate upon the courts was the 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 Charter 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 [Vriend].

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