The Legitimacy of Judicial Review

• Author: Hon. Robert J. Sharpe/Kent Roach
• Profession: Court of Appeal for Ontario- Faculty of Law University of Toronto
• Pages: 25-44

CHAP TER 2

THELEGITIMACYOF

JUDICIAL R EVIEW

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

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

legitimacy of judici al review. Although judicial review on federalism

grounds has been a feat ure of the Canadian constitution since the early

days of Confederation, the tradition of parli amentary supremac y re-

mained strong until the advent of the Charter. In that tradition, there

are no constraints upon what Parlia ment can do, and it is thought that

Parliament is the best pl ace to achieve an appropriate bala nce between

individual right s and freedoms and the broader public interest. Thi s

principle had always been qualified in Canad a by the pract ice of judi-

cial review on federal ism grounds, but the Charte r of Rights and Free-

doms 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 ap-

parently le ss constr ained by st rict legal pr inciples, but also of gre ater

significance to the average citi zen than those relating to federali sm. For

example, does the right to life, libe rty, and securit y of the person in sec-

tion 7 include a woman’s right to choose whether to have an abortion?

Does the right to freedom of expre ssion include the right to spread ha-

tred against par ticular racial or religious groups? Can the government

deny benefits or marita l 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. B ecause the Canadian constitution

25

the

charter of r ights and fr eedoms

26

exhaustively gra nts legislative power to either the federa l Parliament

or the provincial legislatures, the res ult of a decision holding that, say,

a province cannot enact a cer tain law will almost inevit ably be that the

federal government can. On the other h and, the result of a Charter de-

cision strik ing down a law is that, unless res ort is had to the “overr ide”

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 rev iew is fuelled by the

fact that the Canadian judicial system in general, and the adjudication

of constitutional case s in particul ar, are premised on the assumption

that questions coming before the court s are legal rather tha n politi-

cal and as such are to be dec ided strictly upon legal ground s. 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

between two private parties. The same judges decide the const itutional

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

stitutional issue on grounds simila r to those that apply to the pr ivate

dispute. It h as become i ncreasingly ob vious, howe ver, that ma ny, if not

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

different in nature from the quest ions formerly posed to the courts. It

is not surprisi ng to find many observers a sking whether it is legitimate

to give unelected and unaccountable judges a definitive say on the se

vitally import ant and highly controversial m atters. In particul ar, some

have questioned the qualifications of the law yers who sit on the bench

to decide political, moral, and philos ophical 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 Freedom s nor for the powers it confers upon them.1 The en-

actment of the Charter and the decision to confer a broader mandate

upon the courts was the consc ious choice of the elected representatives

of the people. In 1982 t he constitution was amended to include an ex-

1In Reference Re s. 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486, 24

D.L.R. (4th) 536, Lamer J. states at 497 (S.C.R.):

It ought not to be forgotten that t he historic decision to entre nch the Char-

ter in our Constit ution was taken not by the court s but by the elected

representat ives of the people of Canada. It was t hose representatives who

extended the sc ope of constitutional adjudicat ion and entrusted the cour ts

with thi s new and onerous responsibil ity. Adjudication under the Char-

ter must be approached fr ee of any lingering doubts as to it s legitimacy.

See also Vrie nd v. Alberta, [1998] 1 S.C.R. 493, 156 D.L.R. (4th) 385 at paras.

131–32 [Vrien d], per Iacobucci J.