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The Charter Dialogue Between Courts and Legislatures* Judicial Review In SEPTEMBER–OCTOBER 2000 • VOLUME 8 • NUMBERS 1–3 PRACTICAL AND AUTHORITATIVE ANALYSIS OF KEY NATIONAL ISSUES SPECIAL EDITION ON THE The Charter dialogue SUPREME COURT’S 1999 between courts and CONSTITUTIONAL CASES FEATURES legislatures* The Charter dialogue between courts and legislatures Peter W. Hogg and THE LEGITIMACY OF BY PETER W. HOGG and Allison A. Thornton . 1 JUDICIAL REVIEW ALLISON A. THORNTON Judicial review in an age of udicial review is the term that is used legal realism: The debate over Peter W. Hogg is dean of the Osgoode Hall judicial activism Jto describe the action of courts in F.L. Morton . 1 Law School of York University. Allison Thornton striking down laws. Lawyers and politi- is a lawyer with Blake, Cassels & Graydon. The Supreme Court of Canada cal scientists, especially those em- in 1999: The year in review ployed at universities, love to debate the Patrick J. Monahan . 3 question whether judicial review is le- elected to their offices nor accountable The judicial role in a democratic state Rosalie Silberman Abella . 8 gitimate. The question arises because, for their actions, are vested with the Judicial activism and the Constitution under the Charter of Rights and Free- power to strike down laws that have Guy W. Giorno . 13 doms, the judges, who are neither The Charter dialogue, page 2 The Supreme Court’s new equality test: A critique Christopher D. Bredt and Ira Nishisato . 16 A mirage or an oasis? Giving Judicial review in an substance to substantive equality Martha A. McCarthy and Joanna L. Radbord . 20 Defence under attack: age of legal realism A review of three important Supreme Court decisions in 1999 Leslie Pringle . 31 The debate over judicial activism Shifting ground: New approaches to Charter analysis People have been taught to believe that BY F.L. MORTON in the criminal context when the Supreme Court speaks, it is Renee M. Pomerance . 36 not they who speak but the Constitution, F.L. Morton is a professor of political science Treaty rights, the Indian Act, at the University of Calgary. and the Canadian Constitution: whereas of course, in so many vital The Supreme Court’s 1999 decisions cases, it is they who speak and not the Kent McNeil . 44 Constitution. The Marshall decision as seen Some question whether there really is — Felix Frankfurter, former Justice of by an “expert witness” the US Supreme Court, in a letter anything called judicial activism. This Stephen Patterson . 53 to President Franklin D. Roosevelt seems a bit undue. The term has been The importance of the Marshall decision used by American and Canadian con- Tom Flanagan . 57 JUDICIAL ACTIVISM stitutional commentators for decades. DEFINED AND APPLIED In its simple and ordinary usage, it de- he debate over judicial activism notes the propensity of a judge (or a T continues to grow in Canada. Judicial review, page 26 Canada Watch is a publication of the York University Centre for Public Law and Public Policy and the Robarts Centre for Canadian Studies of York University The Charter dialogue continued from page 1 been made by the duly elected repre- not seem particularly apt considering PRACTICAL AND AUTHORITATIVE ANALYSIS OF KEY NATIONAL ISSUES sentatives of the people. Is this a legiti- that the Supreme Court of Canada’s de- EDITORS-IN-CHIEF mate function in a democratic society? cisions have to be obeyed by the legisla- Daniel Drache, Robarts Centre for This question also challenges the legiti- tures. Can one have a dialogue between Canadian Studies, York University macy of the Charter because it provides two institutions when one is so clearly Patrick Monahan, Osgoode Hall the authority for a much-expanded role subordinate to the other? The answer, Law School, York University of judicial review. we suggest, is “yes” in those cases MANAGING EDITORS The conventional answer to the where a judicial decision is open to re- question is that judicial review is legiti- versal, modification, or avoidance by Cheryl Dobinson mate in a democratic society. The rea- the competent legislative body. The judi- Joanne Rappaport son is based on our commitment to the cial decision can cause a public debate COLUMNISTS THIS ISSUE rule of law. All of the institutions in our in which Charter values are more Peter W. Hogg and Allison A. Thornton society must abide by the rule of law, prominent than they would have been if F.L. Morton and judicial review simply requires obe- it were not for the judicial decision. The Patrick J. Monahan dience by the legislative bodies to the legislative body is then in a position to law of the constitution. When the Su- decide on a course of action—the re- Rosalie Silberman Abella preme Court of Canada strikes down a enactment of the old law, the enactment Guy W. Giorno prohibition on the advertising of ciga- of a different law, or the abandonment Christopher D. Bredt and Ira Nishisato rettes (as it did in the RJR-MacDonald of the project—that is informed by the ju- Martha A. McCarthy and case, 1995), it is simply forcing the Par- dicial decision and the public debate Joanna L. Radbord liament of Canada to observe the Char- that followed the decision. Leslie Pringle ter’s guarantee of freedom of expres- Renee M. Pomerance sion. When the Supreme Court of SECTION 33 OF THE CHARTER Kent McNeil Canada adds sexual orientation to the Dialogue will not work if the effect of a Stephen Patterson list of prohibited grounds of discrimina- judicial decision is that the legislative Tom Flanagan tion in Alberta’s human rights legisla- body whose law has been struck down PRODUCTION tion (as it did in the Vriend case, 1998), cannot now accomplish its legislative it is simply forcing the legislature of Al- objective. But it nearly always will. The WordsWorth Communications first reason why a legislative body is berta to observe the Charter’s guaran- CONTACT FOR INFORMATION tee of equality. rarely disabled by a judicial decision is the existence in the Charter of the over- Canada Watch The difficulty with the conventional 227 York Lanes, 4700 Keele St. answer is that the Charter is, for the ride power of s. 33. Under s. 33, a legis- North York, Ontario M3J 1P3 most part, couched in such broad, lature need only insert a “notwithstand- Phone (416) 736-5499 vague language that, in practice, the ing” clause into a statute and this will lib- judges have a great deal of discretion in erate the statute from most of the provi- Fax (416) 650-4321 applying its provisions to laws that sions of the Charter, including the guar- www.yorku.ca/robarts antees of freedom of expression and come before them. The process of ap- ANNUAL SUBSCRIPTION RATES plying the Charter inevitably involves equality. Recall that s. 33 was added to (6 ISSUES PER YEAR) the Charter late in the drafting process “interpreting” its provisions into the like- Institutions: $75 at the behest of provincial premiers ness favoured by the judges. The prob- Individuals: $35 lem has been captured in a famous who feared the impact of judicial review on their legislative agendas. Students: $20 American aphorism: “We are under a (Outside Canada, add $10) Constitution, but the Constitution is When the Supreme Court of Canada what the judges say it is”! struck down a Quebec law forbidding Canada Watch is produced jointly by the use of English in commercial signs the York University Centre for Public Law and on the ground that the law violated the Public Policy, and the Robarts Centre for THE CONCEPT OF “DIALOGUE” Canadian Studies of York University. guarantee of freedom of expression In this article, we argue that, in consid- Copyright © 2000 (Ford, 1988), Quebec followed the deci- ering the debate about the legitimacy of Centre for Public Law and Public Policy; sion by enacting a new law that contin- the Robarts Centre for Canadian Studies judicial review, it is helpful to think of ju- ued to ban the use of English on all out- Printed in Canada dicial review as part of a “dialogue” be- door signs. The new law continued to tween the judges and the legislatures. At ISSN 1191-7733 first blush, the idea of a dialogue does The Charter dialogue, page 18 2 Canada Watch • September–October 2000 • Volume 8 • Numbers 1–3 The Supreme Court of Canada in 1999: The year in review n the 1999 calendar year, the Su- BY PATRICK J. MONAHAN cessful leave applications was signifi- I preme Court of Canada handed cantly lower. down 18 constitutional cases, down Patrick Monahan is professor of law and director of the Centre for Public Law and slightly from 21 constitutional decisions CONSTITUTIONAL CASES Public Policy at Osgoode Hall Law School, Of the 18 constitutional cases in 1999, 14 in 1998 and 22 in 1997. But, overall, the York University. output of the court in 1999 was signifi- were Charter cases, 2 were federalism cantly lower than in previous years, with cases, and 2 were aboriginal rights the court handing down a total of just 73 leave being successful in 1999. Also cases. The claimants succeeded in their decisions. This represents a drop from noteworthy is that the court received claims against government in 5 of the 14 the established pattern in the 1990s—a about 20 percent fewer applications for Charter cases in 1999, a “success rate” period during which the court tended to leave in 1999 as compared with 1998 of 36 percent. This is consistent with the decide over 100 cases annually (includ- (458 versus 572), which means that al- established pattern that we have tracked ing 124 decisions in 1996 and 150 in though the percentage of successful ap- in recent years, with about one in every 1993).
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