Judicial Review in Canadian Constitutional Law: A Brief Overview

Following preliminary comments about judicial review in Canada, this Article will describe Canada's most recent attempt to justify the legitimacy of judicial review through the dialogue approach. According to this approach, judicial review under the Canadian Charter of Rights and Freedoms (Charter)1 is legitimate. The rationale being that, in most cases where courts strike down legislation, legislatures possess the necessary latitude to re-enact laws having the same or similar objectives as the impugned legislation. After describing the essential features of the Canadian constitutional order that are the basis for this claim of an institutional dialogue between courts and legislatures, this Article will briefly address some of the problems raised by the dialogue approach. I. A BRIEF HISTORICAL DESCRIPTION OF JUDICIAL REVIEW IN CANADA First, judicial review is not a novel feature of the Canadian constitutional landscape.2 The British colonies that eventually formed the Canadian federation were, from their very inception, subject to a panoply of Imperial political and judicial review mechanisms. At a political level, Imperial authorities had the jurisdiction to reserve and disallow colonial legislation. At the judicial level, colonial and Imperial courts, most importantly the Judicial Committee of the Privy Council (Privy Council), were asked to assess whether colonial statutes were repugnant to the provisions of Imperial legislation extending to the colonies (specifically, their different British-imposed constitutions).3 Although Canada became, for all intents and purposes, a sovereign State after the First World War, appeals to the Privy Council were not abolished in their entirety until 1949. Second, although judicial review was a familiar phenomenon by the middle of the nineteenth century, it only became commonplace after 1867, when the Imperial Parliament enacted the British North America Act,4 Canada's federal constitution. From that point onward, judicial review attracted the attention of politicians and academics. Before the 1930s, it was not, however, a controversial issue. Radical change occurred as a result of a series of decisions rendered by the Privy Council in 1937, striking down Prime Minister Richard Bedford Bennett's New Deal.5 Academics lambasted these decisions. It was not the judicial review, however, so much as the results of the Privy Council's decisions, that were the object of their criticism.6 Among other things, academics outside the province of Quebec denounced the decentralizing nature of the Privy Council's federalist decisions and the implicit promotion of the laissez-faire doctrine.7 With the abolition of appeals to the Privy Council in 1949, the Supreme Court of Canada became truly supreme; in the words of one of its future Chief Justices, it became the final court of and for Canadians.8 From that time forward, the subject of the criticism would be the Supreme Court of Canada's centralist jurisprudence. Most of the criticism, however, did not come from English Canada, as it had in the past. The source of criticism was rather from politicians and academics in the Province of Quebec, the only province which is predominantly French and the only one with a civil law system in matters of private law. One Quebec premier is famous for having declared that: [l]ike the Pisa Tower, the Supreme Court always tilts to the same side.9 Third, the legitimacy of judicial review became a truly national issue involving academics, politicians, the media, and the general public with the adoption of the Canadian Charter of Rights and Freedoms10 in 1982. Federal and provincial human rights legislation had existed since the middle of the century, but the protection of human rights had not been enshrined in the formal constitution.11 For the first time in Canadian history, the Constitution spoke directly to the people. Individuals, as opposed to institutions, were the main beneficiaries of the constitutional provisions. …

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