The Legitimacy of Judicial Review

• Author: Hon. Robert J. Sharpe, Kent Roach
• Pages: 27-46

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Cha pter 2

THE LEGITIMACY OF

JUDICIAL REVIEW

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 judicial rev iew. 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 parli amentary 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 right s and freedoms and the broader public interest. This

principle had always been qual if‌ied in Canada by the practice of judi-

cial review on federalism g rounds, but the Charter 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 less constra ined by strict legal principles, but also of gre ater

signif‌icance to the average citi zen than those relating to federalism.

For example, does the right to life, libert y, 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 tha n

one made on federalism grounds. Becaus e the Canadian constitution

THE

CHARTER OF R IGHTS AND FREEDOM S

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exhaustively grant s legislative power to either the federal Parliament

or the provincial legislatures, the result of a decision holding that, say,

a province cannot enact a certain law will almost i nevitably be that

the federal government can. On the other hand, the result of a Charter

decision striking down a law is that, unles s resort is had to the “over-

ride” 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 review i s fuelled by the

fact that the Canad ian judicial system in general, and t he adjudication

of constitutional cases 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 strict ly upon legal grounds. As will be

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

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

tween two private parties. The same judges decide the constitutional

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

stitutional 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 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 f‌i nd many observers asking 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 qualif‌icat ions of the lawyers who sit on the bench

to decide political, moral, and philosophical controversies.

From a formal perspective, there is a cle ar 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 th at the Charter confer s upon

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

er mandate upon the courts wa s the conscious choice of the elected

representatives of the people. In 1982 the constitution was amended to

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 court s but by the elected represent-

atives of the people of C anada. 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 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 [Vrie nd].