Canadian courts today describe themselves as the guardians of the Constitution. They have the final word on what the Constitution allows and disallows, and the power to strike down state action that, in their judgment, is unconstitutional. Is leaving this responsibility solely in judicial hands the best way of upholding the supreme law of a liberal democracy such as Canada? Does our Constitution even call for judicial supremacy in constitutional matters?

Given its significance, one might expect that such authority would be expressly granted by the Constitution. Not so. The constitutional provision that is said to grant this authority describes the Constitution as the “supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” That supremacy clause does not identify courts as the sole or final arbiters of constitutionality. It identifies no particular branch of the state as uniquely responsible for these tasks.

Yet Canadian courts have reviewed state action for constitutionality since shortly after Confederation. Until 1982, judicial review focused on the constitutional division of legislative power between the provincial and federal governments. If the legislation under review breached that division, courts would strike it down. In 1982, when Canada repatriated its constitution and added to it the Charter of Rights and Freedoms, the scope of judicial review increased dramatically. Many watershed legal moments since 1982 are products of judicial review: abortion, assisted death, same-sex marriage, and Aboriginal rights (to name only a few).

Despite the normalcy of judicial review in Canada today and its centrality to our constitutional infrastructure, there is a surprising lack of consensus on the legal basis that enabled courts to take up this power in the 19th century. Debate on that matter has faded over time, as judicial review has become increasingly viewed as a fixture of Canadian constitutionalism.

If, for the sake of argument, Canadian courts were not empowered to strike down laws that they deem unconstitutional, many would ask: what is the alternative? How would we know if state action is constitutional? How would we enforce the Constitution?

Alarm over the absence of judicial oversight for constitutional matters can, at times, be overblown. Liberal democracies such as the United Kingdom have, for centuries, functioned without it. The idea that Parliament can make or unmake any law as it sees fit – the principle of parliamentary sovereignty – is a cornerstone of British constitutionalism. The upshot of this principle is that, unlike Canadian courts, British courts cannot strike down laws that were duly enacted by the legislature.

Our Constitution is, as it declares, “similar in Principle” to that of the UK. Given the constitutional centrality of parliamentary sovereignty across the pond, this declaration suggests the absence of judicial review in Canada. The idea that the Constitution’s status as the “supreme law” demands judicial review is debatable. Constitutional supremacy demands compliance with the Constitution, not a particular mechanism for enforcing compliance.

Some believe that abandoning judicial review opens the door to the tyranny of the majority. Again, the example of countries such as the UK reveals that core liberal democratic values do not necessarily depend on judicial review. In any event, concerns about imposing the majority opinion in constitutional matters seem to be a neutral factor. When the Supreme Court of Canada rules on a constitutional issue, the majority view among its judges prevails. While legislators can be held accountable for their decisions at the ballot box, the same is not true of unelected judges.

Judges, with all due respect, arguably have no particular expertise in matters such as freedom, equality, dignity and human rights. Illuminating these matters is a far cry from interpreting a commercial contract or adjudicating a criminal trial. This point on expertise applies equally to legislators. Philosophers and political theorists may be better equipped to apply the charter than judges and politicians.

There is also a view that the independence of courts from politics enables a more principled adjudication of charter rights; however, this independence does not change the fact that judges are human beings with value judgments on these matters. We all, to one degree or another, subscribe to a worldview. While the same goes for people who are elected to legislatures, at least their worldviews are known publicly and subject to direct democratic approval.

In the absence of judicial review, courts would remain capable of supporting constitutionalism. While the power to strike down legislation would not exist, courts could continue to identify unconstitutional legislation. These identifications would likely influence the deliberations of governments and could foster dialogue between branches of the state on constitutional issues.

The reality is, though, that judicial review is here to stay in Canada. But this reality does not stop the other branches from enhancing their protection of the Constitution. Legislatures should repeal unconstitutional laws, and the executive should not enforce them. These branches should be proactive; they need not wait for judicial intervention to identify unconstitutionality.

That is not to say that these branches ignore the Constitution. Government lawyers frequently give opinions on the constitutionality of proposed legislation. In some cases, they have a statutory duty to do so. Attorneys general, as chief law officers of the Crown, must alert federal or provincial cabinets to legislation that they believe to be unconstitutional. On a seemingly daily basis, the Constitution is invoked in political discourse and policy debates.

Even so, the conventional wisdom is that the courts, and the courts alone, guard our Constitution. Yet there may be something to gain, in terms of constitutional compliance, by cultivating a spirit of cooperation on this front. If our aim is to uphold the supreme law at all times, it seems sensible to assign this duty to all arms of the state rather than make it the responsibility of only one.

Photo: Shutterstock, by Howard Sandler.

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Brian Bird
Brian Bird is an assistant professor at the Peter A. Allard School of Law at the University of British Columbia and is a research fellow at the Religious Freedom Institute in Washington, DC.

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