Legitimacy of judicial review under Canadian charter of rights and freedom

Essay by ray83911University, Bachelor's July 2009

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Since the change of BNA Act of 1867 to Constitutional Act of 1982 and the entrenchment of Canadian Charter of Rights and Freedom, the role of Supreme Court of Canada has enormously expanded in both legal and political realms in Canada. Before the Constitution Act of 1982 and the entrenchment of Charter into the constitution, the courts largely dealt with matters regarding the division of power between federal and provincial government. However after 1982, the courts became pro-active in determining the relation between the state and its citizen through judicial review. Judicial review is the court’s evolution to determine the constitutionality of the executive and the legislative government’s political action as well as finding out whether a legislation, enacted by both branches of the government, infringes any members of the citizen. Although this may sound simple and excellent procedure to ensure Canadian democracy, the notion of judicial review has be one of the most controversial issues in Canada.

Some people argue that leaving important political decisions to unelected judges and giving huge powers to court under the charter is undemocratic. However such criticism of Canadian judicial review has largely emanated American experience of judicial review. Unlike American judicial review, where the courts have the final words, Canadian judicial review generates communicative democratic dialogue between executive, legislative governments and the courts to enhance Canadian Democracy.

As mentioned, the criticisms of Canadian judicial review mostly come from the American experience of the judicial review. There are two major differences between Canada and U.S. judicial review, which allow Canadian government to engage in a democratic dialogue between legislature and judiciary. First of all, unlike U.S. there is the section 1 of reasonable limits clause, which allows legislature to enact laws that may limit certain rights from citizens. The court may be convinced...