Malcolmson and Myers (reference below) define judicial review as the judiciary’s task of defining and applying the terms of a constitution.
“By their very nature, constitutions have to regulate every single aspect and activity of a political regime. This means that constitutional rules must be applicable to an almost infinite number of possible situations. But the number of constitutional rules cannot itself be infinite. For this reason, constitutional laws are of necessity written in language that is highly general and seemingly vague. A constitutional division of powers cannot list every possible object of legislative activity: the regulation of automobile engine emissions, the regulation of industrial effluents, the regulation of garbage disposal, and so on. It will therefore collect all of these matters under a general heading like “protection of the environn1ent.” By the same token, the Charter of Rights and Freedoms cannot specify all the types of police searches that are acceptable and all those that are not. It therefore defines our rights in general terms: the right to be secure against “unreasonable” searches.
“The problem, however, is that it is often difficult to know how to apply general rules in specific cases. … Obviously, then, someone has to be in a position to offer an authoritative interpretation of what the Constitution means in these circumstances. This is a task that normally falls to the judiciary. Judicial review of the Constitution refers to the judiciary’s task of defining and applying its terms. The courts will decide, for example, whether the Constitution says that a particular legislative matter is of federal or provincial jurisdiction. To do so, they will determine the concrete meaning of abstract phrases such as “the Peace, Order, and good Government of Canada,” “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” or “the right to be secure against unreasonable search or seizure.””
Atlas topic, subject, and course
Patrick Malcolmson and Richard Myers (2012), “The Constitution,” in The Canadian Regime: An Introduction to Parliamentary Government in Canada, 5th ed., page 23, Toronto: University of Toronto Press.
Page created by: Ian Clark, last modified on 12 August 2016.