D. The Role of the Courts under the Charter

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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Assessing the relative merits of the arguments for and against judicial review requires looking at what the courts do not do, as well as what they do. While the critics on the left assert that the courts will import conservative values, it is important to put in perspective the outcomes of some of the so-called "bad cases" that they decry. In some of these cases, the failure to adopt the view of the left does not automatically translate into a victory for the right. For example, when the Supreme Court of Canada refused to find that collective bargaining was a constitutional right under the guarantee of freedom of association, that did not mean an end to collective bargaining; rather, it pushed the debate about the nature and scope of labour powers into the political arena. In addition, the Supreme Court revisited the matter to hold the Charter protects some of the basics of collective bargaining.47Similarly, when the courts refuse to recognize positive rights - for example, to welfare as an element of security of the person - that does not prevent political debate and action with respect to welfare policy; instead, it leaves the difficult policy choices to the political process. There

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will be a danger to continued democracy only if the legislature confuses the court’s decision that some measure is consistent with the Charter with the separate question of whether it is wise and necessary policy.48Finally, in other areas, while the result in a given case may provide a victory to a powerful economic interest, the decision often has implications throughout the legal system in ways that may also benefit the less advantaged. For instance, when a powerful corporation wins protection against unreasonable searches and seizures in the criminal process, it will not be the only beneficiary. As discussed above, many Charter decisions on controversial topics, such as the rights of tobacco companies to advertise, have not proven to be the final word on the subject. Legislatures still retain the right to enact new legislation that can be justified under section 1 of the Charter or subject to the section 33 override.

In the chapters that follow, we will see that Canadian courts have demonstrated a marked deference in certain areas which, it may be argued, results from their recognition of the limits of the judicial function. The Canadian Supreme Court has been unsympathetic to claims of pure economic rights and has refused to become...

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