Legal and Social Affairs Division
The role of judges and the courts in the evolution of Canadian law must be examined in the Canadian federal and constitutional context. It is closely linked to the role of Parliament and the provincial legislative assemblies (legislative branch).
The judicial branch is independent, and its purpose is to interpret the law and federal and provincial statutes. From a constitutional standpoint, the role of the courts has expanded since the Constitution Act, 1982 and the Canadian Charter of Rights and Freedoms were enacted.
Since 1982, the powers of Parliament and provincial legislatures have been subject to two key constitutional limitations:
- the limitations imposed by distribution of legislative powers (limits already provided for in the Constitution Act, 1867); and
- the limitations outlined in the Charter, which are designed to protect minority rights and civil liberties.
In this context, judges – who are not elected and are not accountable to the Canadian public for their decisions – have, under the Charter, the power to overturn laws passed by elected representatives. The legitimacy of this power is the subject of ongoing debate, especially given that the rights outlined in the Charter are open to interpretation, and therefore how they are applied depends on the point of view of judges.
In short, the relationship between the courts and Parliament continues to be the subject of discussions that seek to determine which entity holds supreme legal authority.
Parliamentary supremacy and judicial review
Parliamentary supremacy in Canada is a constitutional principle inherited from the United Kingdom. This principle upholds the supremacy of the law and Parliament’s absolute power to make or abolish any law, without being constrained by previous laws. Therefore, under this tradition, the courts can apply and interpret an Act of Parliament, but they cannot comment on its validity.
Canada, however, is a federation with a written constitution that clearly outlines the powers delegated to the federal and provincial governments.
In a federation, the judicial branch can and must restrict the authority of Parliament to ensure that the limits established by the provisions regarding the division of powers are respected (Constitution Act, 1867, sections 91 to 95).
Since Canada is also a “constitutional democracy,” Parliament and the provincial legislative assemblies are connected by the Constitution, which is itself subject to specific amendment procedures (Constitution Act, 1982, sections 38 to 42).
While at first the principle of parliamentary supremacy was upheld in Canada (Hodge v. The Queen, (1883) 9 A.C. 117), when the Charter was adopted in 1982, Canada moved from a system of parliamentary supremacy to one of constitutional supremacy (Reference re Secession of Quebec, paragraph 72). In fact, section 52(1) of the Constitution Act, 1982 affirms that the Constitution is the supreme law of Canada, and that other laws must be consistent with it. Under this provision, the courts may declare all provisions that are inconsistent with the Constitution to be of no force or effect.
As part of the legislative process, the minister of Justice must examine all regulations and government bills to ensure that they comply with the Charter and the Canadian Bill of Rights (1960) (section 3). The Canadian Bill of Rights, an ordinary statute intended to protect certain rights and freedoms, applies to all laws and policies under federal jurisdiction.
Judicial restraint and judicial activism
In the course of their analyses, the courts are often required to interpret the Charter and other provisions of the Constitution in a context that can be legally, politically or socially controversial or sensitive.
Their conclusions are frequently a matter of public debate, especially as regards the scope of the judicial function and how it is exercised.
- On the one hand, proponents of judicial restraint claim that the courts should not replace parliaments as a source of law, and that we should defer to democratically elected legislative bodies to make decisions that affect government policies. Therefore, judges should limit themselves strictly to interpreting the law.
- On the other hand, proponents of judicial activism believe that judges have the right, and even the obligation, to adapt their interpretations based on broad societal trends and the evolution of contemporary values. They highlight the fact that Parliament has given the courts the role of verifying the compliance of laws with the Charter. The first section of the Charter provides flexibility in determining the reasonableness of a law: it must be demonstrably justified “in a free and democratic society.”
However, there is a form of dialogue between Parliament and the courts, because Parliament maintains the ability to respond at the legislative level to an unfavourable judicial interpretation. For example, in the Canada (Attorney General) v. Bedford case in 2013, the Supreme Court of Canada overturned certain provisions of the Criminal Code that dealt with prostitution and, in response, in 2014, Parliament passed the Protection of Communities and Exploited Persons Act.
The impact of court decisions on the evolution of Canadian society and the relationship between the legislative branch and the judicial branch remain issues of discussion that have not yet been resolved.
Hogg, Peter W., Allison A. Bushell Thornton and Wade K. Wright. “Charter Dialogue Revisited: or ‘Much Ado About Metaphors.’” Osgoode Hall Law Journal. Vol. 45, 2007.
Kari, Shannon. “Tough on crime.” Canadian Lawyer, 3 August 2015.
Roach, Kent. “Judicial Activism in the Supreme Court of Canada.” In Brice Dickson, ed., Judicial Activism in Common Law Supreme Courts. Oxford University Press, Oxford, 2007.
Walker, Julian. Government of Canada Responsibilities for Domestic and International Human Rights. Publication No. 2011-78-E. Parliamentary and Information Research Service, Library of Parliament, Ottawa, 1 December 2014.