The Legitimacy of Judicial Review

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

27

Chapter 2

THE LEGITIMACY OF

JUDICIAL REVIEW

There h as 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 review. Although judicial review on federalism

grounds has been a feature of the Canadian constitution since the early

days of Confederation, the tr adition of parliamentary supremacy re-

mained st rong until the advent of the Charter. In that t radition, there

are no constraints upon what Parliament can do, and it is t hought that

Parliament is the be st place to achieve an appropriate balance between

individual rights and f reedoms and the broader public interest. This

principle had a lways been qualif‌ied i n Canada by the practice of judi-

cial rev iew on federalism grounds, 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 le ss const rained by str ict legal principles, but also of greater

signif‌icance to the average citizen than those relati ng to federalism.

For example, does the right to life, liberty, and secur ity of the per-

son in section 7 i nclude a woman’s right to choose whether to have an

abortion? Does the r ight to freedom of expre ssion 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 signif‌ica nt than

one made on federalism grounds. Because the Canadian const itution

THE CHARTER OF R IGHTS AND FR EEDOMS28

exhaustively grants legislative p ower to either the federal Parliament

or the provincial legi slatures, the result of a decision holding that, say,

a province cannot enact a cert ain law will almost inevitably be t hat

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

decision strik ing down a law is that, un less resort is had to the “over-

ride” clause, neither level of govern ment c an 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 legiti macy of judicial rev iew is fuelled by the

fact that the Ca nadian judicial system in general, and the adjudication

of constitutiona l ca ses 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 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 be-

tween two pr ivate parties. The same judges decide the con stitutional

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

stitutional i ssue on grounds similar to those that apply to the private

dispute. It has become increasingly obvious, however, that many, if not

most, Charter issues involve m atters of value and public policy quite

different in nature from the questions formerly posed to the courts. It

is not surprising to f‌ind many obser vers asking whether it is legitimate

to g ive unelected and unaccountable judges a def‌initive say on t hese

vitally import ant and highly controversi al matters. In pa rticular, some

have questioned the quali f‌ications of the law yers 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 itsel f has pointed out, the judges did not ask for the Charter of

Rights and Freedoms nor for the powers it confers upon them.1 The en-

actment of the Charter and the deci sion to confer a broader mandate

upon the courts was the conscious choice of the elected representatives

of the people. In 1982 the constitution was a mended to include an ex-

1 In 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 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 S.C.R. 493, 156 D.L.R. (4th) 385 at paras.

131–32 [Vrien d], per Iacobucci J.