The Legitimacy of Judicial Review

• Author: Robert J. Sharpe; Kent Roach
• Pages: 29-50

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].