Judicial review and the Charter by Marianna Callocchia

The Charter of Rights and Freedoms: Assessing the Power of the Courts & the legislature


The Canadian Bill of Rights – 1960:

  • The Canadian Bill of Rights served as the Canadian government’s first attempt to formally introduce a series of rights
  • It was introduced by the Diefenbaker government in 1960 in response to the past and contemporary political, cultural and social climates
    • In Particular, the atrocities and injustices of WWII served as the impetus driving the federal government to pursue the Canadian Bill of Rights
  • While the Canadian Bill of Rights still operates today, the constitutional status of the Charter ensures that the former is ‘subordinate’ or accountable to the latter



Why was the Charter introduced?

  • The Charter was implemented in 1982 by the Trudeau government, formally extending a series of legal, political, equality, religious and language rights and freedoms to Canadians
  • In many respects, the Charter was a much stronger document than its predecessor (the Bill of Rights) and sought to rectify many of the shortcomings of the Bill:
    • The Bill of Rights is generally framed as ensuring Parliamentary supremacy, as opposed to Constitutional supremacy (i.e., the Charter).
    • The Charter is a constitutional document, meaning that it is the SUPREME LAW or HIGHEST LAW in Canada. By extension, this also means that ALL Acts of Parliament are accountable to the Charter. The Bill of Rights, however, was an ordinary legislative document, meaning that it was much easier to repeal or amend it.
    • The Charter extended the level and type of rights protection when compared to the Bill of Rights. For example, the revised version now included language rights and the remedial powers of the courts. Overall, the Charter is a much more inclusive and comprehensive document when compared to the Bill.
    • The Charter provided the courts with extensive powers – specifically the Supreme Court of Canada (SCC) – due to the inclusion of the remedial provision (section 24)
    • The inclusion of section 1 (the reasonable limits clause) and section 33 (the notwithstanding clause) suggest that the rights and freedoms set forth in the document were not absolute; granted these two sections, the government reserves the right to infringe on the rights and freedoms of Canadian citizens, albeit in a narrow set of circumstances
    • The Charter applies to both federal and provincial governments, whereas the Bill extended solely to the federal government. Thus, under the Charter both levels of government are accountable to the document.



Part 1: Unpacking and understanding s. 24(1), s. 1 & s. 33 of the Charter:


Judicial Supremacy & Section 24: The Remedial Powers of the Court

  • Pre-1982, the role of the Court was limited to an interpretive function – sometimes referred to as the “umpire of federalism”
    • Their role was to settle disputes between both orders of government (federal and provincial), specifically with regards to the division of powers. It was to ensure that the federal government did not legislate in areas of provincial jurisdiction, and vice versa.
  • With the birth of the Charter, however, particularly as a result of section 24, the Courts have become a very powerful institution
    • Their newfound role post-1982 has often been referred to as “guardians of the constitution”
  • Section 24(1) states: “Anyone whose rights and freedoms, as guaranteed y this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such a s remedy as the court consider appropriate and just in the circumstance
  • Under section 24(1), the courts have the power to:
    • Strike down (or invalidate) a law, statute or act as unconstitutional;
    • Asset that a law infringes on the Charter and is thus unconstitutional. Under this power, the court suspends their decision of unconstitutionality to grant the legislatures the appropriate time to fashion a legislative response (typically 1-2 years).
    • Amend the legislative document in question
      • This is the most controversial power of the courts because it allows them to write-in legislation, thus acting as policy (and not legal) actors



Section 1: The Reasonable Limits Clause

  • Section 1 states: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society
  • Section 1 is important for several reasons:
    • It means that rights are not absolute
    • It is written in such an ambiguous way that it permits judges to decide what is considered a justified or unjustified rights infringement
    • The onus rests on the government to demonstrate (or to convince the Courts) that a rights infringement is justified
    • The words “demonstrably justified” suggest that the threshold for a ‘legitimate’ or justifiable rights violation is relatively high
      • Once again, whether or not the legislatures satisfy this condition is the Court’s prerogative
    • In the Oakes case, the SCC developed a test to determine whether or not a rights infringement is justified in a “free and democratic society”
      • This is the test currently employed by the SCC and the lower courts
    • The Oakes test has several important features:
      • There needs to be a rational objective for infringing on rights and freedoms. In other words, the legislative objective needs to be “pressing and substantial”
      • The infringement needs to be “rationally connected” to the legislative objectives. In other words, there must be a correlation between what the government is trying to achieve and how (or the ways) they are attempting to achieve it
      • The rights infringement must ‘minimally impair’ on a right. Essentially, the infringement must infringe on a right as little as possible. Therefore, if there is a less intrusive means of achieving a legislative objective, the legislatures are obliged to pursue that course of action.
      • The legislative objective must have “proportionate effects.” More specifically, the benefits of the legislative objective must outweigh the costs associated with infringing on protected rights and freedoms.


  • What does the Oakes test mean for judicial power?
    • Arguably, section 1 was included to permit government – when necessary – to infringe on protected rights and freedoms
      • It was a clause introduced to allow governments to justify or ague that the benefits of the legislation in question compensate or outweigh the harms
    • However, the vigorous and stringent 4-part test employed by the courts means that in a large number of cases, the Courts will find that an infringement is not justified
    • More importantly, it grants the courts the ‘final word’ on matters of constitutionality
      • If the court finds that the legislation is unjustifiable as per section 1, it is at the court’s discretion to apply the appropriate remedy



Section 33: The Notwithstanding Clause

  • Section 33 states: “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of the Charter
    • This suggests that even if the courts declare legislation to be unconstitutional, the legislatures can invoke the notwithstanding clause, thus overriding the judicial decision


  • Section 33 is a sunset provision – it operates for a period of five years and then is no longer of force unless it is re-invoked
  • Section 33 only applies to fundamental freedoms – for example, freedom of religion – legal rights (section 7-14) and equality rights (section 15)
    • Other rights, however, such as language rights, are immune from section 33



Part 2: Unpacking and understanding the Charter


Dialogue Theory:

  • Dialogue theorists argue that the Charter permits an institutional dialogue between the SCC and the legislatures
  • In particular, they argue that the SCC does not have the last word because the legislatures are free to respond to judicial invalidation as they see fit
    • They can introduce new legislation that attempts to achieve the same legislative objectives OR they can invoke the notwithstanding clause if the legislation in question concerns sections 2, 7-14 & 15
  • Some issues with dialogue theory:
    • Their analysis of section 33 might overstate or exaggerate the extent to which the notwithstanding clause serves to bring power back to the legislatures
      • Section 33 has only been invoked once since the birth of the Charter
      • Governments tend to refrain from using section 33 because of the possible backlash that would stem from this move
        • In essence, invoking the notwithstanding clause suggests that governments are willing to openly infringe on basic rights and freedoms, irrespective of the court’s claim that the legislation was not a justifiable infringement
      • In terms of section 1, they might also exaggerate the extent to which it brings power back to the legislatures
        • The legislatures’ successful section 1 defense requires that the court accepts the government’s position. If the court finds government’s defense under section 1 to hold no weight, the court reserves the right to enforce any of the three remedial powers


Left-Wing Charter Critics:

  • Critical of the Charter itself
    • Suggest that the document is inflexible or too rigid and thus does not reflect contemporary issues and/or injustices
    • Argue that the Courts should actively employ a non-interpretivist approach:
      • The Charter should act as a ‘living tree’
      • The Canadian courts should be activist


Right-Wing Charter Critics:

  • Are critical of the court’s role under the Charter:
    • Believe that the remedial powers of the courts results in the “legalization of politics”
    • The Court should employ an interpretivist approach: judicial review should be textually legitimized by the Charter itself because it ensures that they are accountable to the Constitution
    • As an unaccountable or unelected body, their power needs to be constrained
    • The court’s activist approach has resulted in judicial supremacy


Part 3: Is the Court’s approach to the Charter reflective of judicial supremacy (strong-form) or judicial deference (weak-form)?


An analysis of the following cases:

  • Legal Rights:
    • Insite – Safe injection facilities (s. 7)
    • Seaboyer – past sexual history of victims in sexual assault cases (s. 7 & 11(d))
  • Democratic rights (s. 3):
    • Sauvé I & Sauvé II
  • Equality rights (s. 15)
    • Vriend v. Alberta – the writing in of sexual orientation as a protected ground under section 15



Judicial Review Systems:

  • Strong-form review:
    • The US court is typically referred to as a prime example of strong-form review
    • While judicial decisions can be overturned, overriding judicial directives can only be done in the long-run
    • There are no formal mechanisms for judicial reversal
    • The courts generally have extensive powers that go beyond simply declaring that a statute. Act or legislation is unconstitutional
  • Weak-form review:
    • Judicial decisions can be overturned in the short-term
    • There are no formal mechanisms that allow the legislature to overturn judicial decisions
    • Very narrow remedial powers of the Court


Is Canada reflective of strong-form or weak-form review?

  • As previously explained, the Canadian court have a range of remedial powers at their disposal. Importantly, the courts have actively exercised their discretion under section 24(1) à Reflective of strong-form judicial review
  • However, there are formal legislative mechanisms which grant the legislatures the opportunity to reverse judicial decisions in the short-run (i.e., section 33) à Reflective of weak-form judicial review
    • Recall, however, that section 33 is generally never used
    • This might suggest that Canada is reflective of strong-form review, in spite of the inclusion of s.33 in the Charter



Section 7: Legal Rights

  • “Everyone has the right to life, liberty and security of the person and the right not be deprived thereof except in accordance with the principles of fundamental justice”



Insite: Canada v. PHS Community Services Society

  • During the 1990s, Vancouver’s Downtown Eastside (DTES) – a poverty stricken neighborhood – declared a state of “public health emergency”
    • They faced an unprecedented and extremely high rate of HIV/AIDS and hepatitis C infections
    • High levels of poverty and mental/physical health issues in the community
    • The DTES called for the need to address substance abused and overdose as a mental health condition
  • They advocated for the need to establish a safe injection site within the DTES community to substantially reduce the likelihood of overdoses and the spread of diseases
  • The operation of safe injection sites directly infringed on the Controlled Drugs and Substances Act (CDSA)
    • In 2003, the Minister of Health under the Liberal government granted Insite a conditional exemption under the CDSA
    • This meant that they could operate free of criminal prosecution


  • In 2006 & 2007 – under the Harper Conservatives – Insite was granted two subsequent exemptions
    • However, the new Minister of Health indicated his intent to eventually revoke Insite’s exemption
      • In 2008, he did just that
      • This eventually led to a Charter challenge


  • The SCC cited several health and social benefits of Insite, evidencing the clear advantages of its operation as a SIF. These include:
    • Preventing deaths from overdoses and the spreading of disease by allowing drug users to ingest (or inject) drugs in a safe and controlled environment
    • Safer DTES community overall
  • In a unanimous decision, the SCC ruled that the Minister of Health grant Insite an immediate exemption




  • Challenged the constitutional permissibility of s. 276 & 277 of the Criminal Code – commonly referred to as the rape shield provisions
  • The central argument made by the accused was that these sections constituted an infringement on s. 7 & 11(d) of the Charter
    • Section 11(d) claims that everyone has the right to be presumed innocent until proven guilty
  • Seaboyer was charged with the sexual assault of a a women following a night of drinking at a local bar
    • The defense suggested that the questioning of the victim’s past sexual history was necessary to grant him the right to a fair trial and to prove his innocence
  • 7:2 decision on the SCC:
    • Argued that a victim’s past sexual history could not be used to confirm the twin myths – i.e., that the victim was more likely to have consented and/or that they are less credible as a witness because of their sexual promiscuity
    • The majority claimed that s. 276 was an unjustified rights infringement because it threatened the accused’s right to a full answer and defense
    • They struck down s. 276 as unconstitutional
      • Claimed that the courts should have the power to decide when introducing evidence relating to a victim’s past sexual history is relevant



Sauvé I:

  • Sauvé I was a constitutional challenge waged in response to section 51(e) of the Elections Canada Act
  • The case concerned the disenfranchisement of all eligible voters currently serving sentences in federal prisons
  • The SCC unanimously stated that section 51(e) was not a justifiable rights infringement



Sauvé II:

  • In response to Sauvé I, government redrafted the original version of 51(e)
    • The revised version proposed that disenfranchisement apply only to felons serving sentences equal to, or exceeding, two years in a federal prison
      • The logic behind the 2 year + time frame was that it would only apply to serious crimes
      • Thus, it was no longer a blanket provision



  • 5:4 decision on the SCC:
    • The majority claimed that voting rights are basic human rights that are central to any legitimate democratic government
    • The clear omission of s. 3 from the legislative override suggest that the framer’s of the Charter thought them to be an inalienable and indispensable right
    • They claimed that there is no correlation between the government’s objective of promoting prisoner’s respect for law and the disenfranchisement of prisoners
    • Section 51(e) was struck down



Vriend v. Alberta:

  • Section 15(1) case
    • The section states: “Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability”
    • The ‘in particular’ part of s. 15 is what is now commonly referred to as the analogous grounds
      • The listed components under s. 15 are the “enumerated grounds” à They detail the specific social, cultural and religious identities/cleavages that ar protected by the equality rights provision
      • The analogous grounds allow the legislatures or the courts to add groups or categories to the enumerate grounds



  • Section 32(1) states: “This Charter applies”
    • (a): “to the Parliament and government of Canada in respect of all matter within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and”
    • (b) “to the legislature and government of each province in respect of all matters within the authority of the legislature of each province”
      • In other words, the Charter only applies to government action
        • For example, government’s decision not to legislate in a particular area of public policy cannot constitute a rights infringement
        • In the case of Vriend, the Albertan government did not take a definitive stance or position on the issue; they neither included nor excluded sexual orientation as a protected ground under their human rights legislation



  • Facts of the cases:
    • Vriend was a full-time employee in an Albertan college
      • After being asked about his sexual orientation by the president of the college, Vriend divulged that he was homosexual
      • Less than a year later, the board of governors instituted a new policy which permitted the termination of employees on the basis of sexual orientation
      • He was then asked to resign
      • He applied to be reinstated but was refused




  • 8: 1 decision in the SCC:
    • The majority stated that in this case, government inaction is synonymous with government action. The government made a conscious choice to omit sexual orientation as a protected ground under their human rights legislation
    • The exclusion of sexual orientation is an infringement of s. 15(1) that cannot be saved by s. 1 (reasonable limits)
    • The court suggested that the Albertan government’s refusal to include sexual orientation as protected ground amplifies and fossilizes the social stigmatism surrounding homosexuals
    • They are also “withholding benefits or advantages which are available to others”
    • Sexual orientation is written into s. 15(1) by the Court



What do these cases tell us?

  • In all cases, the SCC employed a very narrow approach to section 1 defenses, making it relatively impossible for legislative objectives to be considered a justified rights infringement
  • In the case of Vriend, the SCC wrote-in sexual orientation, which effectively forced the hand of government
    • Even if they did not want to include sexual orientation under section 15(1), they now have no choice but to include it in their human rights legislation
  • In the case of Sauvé I & Sauvé II, we see the power of the Court under section 1:
    • In this case, the government re-worded and re-framed section 51(e) to render it a justifiable rights infringement under section 1
    • The Court, however, still found it to be unconstitutional
      • This means that even when the legislatures respond and comply with the Court’s directives, there is no guarantee that the revised version will pass the Oakes test
    • In the case of Insite, section 7 is reserved for legal rights
      • In this case, the issue dealt with criminal law and health policy, not legal rights
        • Therefore, we see how the Court can extend the meaning and application of sections in order to ensure a favorable policy outcome
      • In the case of Seaboyer, we see how the Court uses section 1 defenses to ensure that they are provided substantial discretion in determining evidence in sexual assault cases
        • Originally, sections 276 & 277 meant that judges could RARELY admit a victim’s sexual history as evidence
        • Post-Seaboyer, the Court was allowed to determine when it was reasonable to introduce this evidence with the sole exception of confirming the twin-myths


  • All of these cases dealt with complex public policy issues
    • As actors trained in the legal profession, it is questionable whether the Court is well positioned to deal with these issues and to fashion appropriate remedies
      • While they are well versed on the law, they are not trained to understand the complexities and underlying objectives of public policy
      • Nonetheless, in none of these five cases, did the SCC defer to the legislatures




Thoughts and comments:

  • Given the case studies and the wording of the Charter itself, do you believe that the SCC or the legislatures have ‘final say’ in matters of constitutionality?
  • Should the courts be deferent to the legislatures? Why or why not?
  • Are these cases reflective of the judicialization/legalization of politics?
  • Is Canada reflective of weak-form or strong-form judicial review? Why is this the cases?
  • Are there any boundaries to limit the power of the Court?






About haroldchorneyeconomist

I am Professor of political economy at Concordia university in Montréal, Québec, Canada. I received my B.A.Hons (econ.&poli sci) from the University of Manitoba. I also completed my M.A. degree in economics there. Went on to spend two years at the London School of Economics as a Ph.D. student in economics and then completed my Ph.D. in political economy at the University of Toronto. Was named a John W.Dafoe fellow, a CMHC fellow and a Canada Council fellow. I also was named a Woodrow Wilson fellow in 1968 after completing my first class honours undergraduate degree. Worked as an economist in the area of education, labour economics and as the senior economist with the Manitoba Housing and Renewal Corporation for the Government of Manitoba from 1972 to 1978. I also have worked as an economic consultant for MDT socio-economic consultants and have been consulted on urban planning, health policy, linguistic duality and public sector finance questions by the governments of Manitoba, Saskatchewan,the cities of Regina and Saskatoon, Ontario and the Federal government of Canada. I have also been consulted by senior leaders of the British Labour party, MPs from the Progressive Conservative party, the Liberal party and the New Democrats on economic policy questions. Members of the Government of France under the Presidency of Francois Mitterand discussed my work on public sector deficits. I have also run for elected office at the municipal level. I first began to write about quantitative easing as a useful policy option during the early 1980s.
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