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Judicial review in Canada

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Judicial review in Canada

Canada has had judicial review of primary legislation on federalism grounds since it was created in 1867. However, the scope of judicial review was greatly expanded with the enactment of the Canadian Charter of Rights and Freedoms in 1982, which constitutionally entrenched individual rights and freedoms.

From 1867 to 1982, Canada had a modified system of parliamentary sovereignty, limited by the federal division of powers. The Constitution Act, 1867 divides legislative authority between the federal Parliament and the provincial Legislatures. Parliament and the Legislatures can only enact laws which come within the subjects assigned to them by the Constitution's division of powers. The Supreme Court of Canada and the lower courts have the power to strike down both federal and provincial primary legislation which exceeds the legislative authority of Parliament and the Legislatures. However, if the law is within the legislative authority of Parliament or the Legislatures, the principle of parliamentary supremacy applies and the courts cannot review the merits of the legislation. Prior to 1982, there was no set of constitutionally entrenched individual rights.

The situation changed in 1982, with the enactment of the Canadian Charter of Rights and Freedoms, a change that would have sweeping effects on both the operation of the Canadian government and on the relationship between the people and the government. The Charter sets out individual rights and freedoms, and gives the Canadian courts the power to review federal and provincial laws under those rights and freedoms. The courts can strike down federal and provincial laws which infringe Charter rights.

In addition to the substantive rights set out in the Charter, there are two other key provisions in the Charter: section 1 and section 33.

Section 1 both guarantees the rights set out in the Charter, and also provides that they are subject to "... such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." This provision allows governments to argue in the courts that a law may infringe a Charter right, but that infringement can be balanced against other important social and social values and can be justified as a reasonable limit on the Charter right.

Section 33, commonly called the "notwithstanding clause," authorises Parliament and the provincial Legislatures to enact laws that infringe certain Charter rights, provided the law expressly states that it operates nothwithstanding the Charter rights in question. This declaration cannot last longer than five years. Not all Charter rights are subject to the notwithstanding clause. The notwithstanding clause has been rarely used in the thirty years since the Charter was enacted. In most cases, suggestions that a government will use the notwithstanding clause are politically very unpopular.

External links

  • Beatty, David M. (1994). "Judicial Review by the Supreme Court of Canada Under the Canadian Charter of Rights and Freedoms". Human rights and judicial review. Martinus Nijhoff Publishers.  


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