The Library of Parliament (reference below) describes the principle of parliamentary supremacy, as it evolved in the United Kingdom, is that “Parliament is supreme over all other government institutions, including the courts.”
The authors note that:
“Canada, unlike the United Kingdom, is a federal state and so required a written constitution to define clearly which level of government can exercise which set of powers. Canada can best be described as a “constitutional democracy,” since the Constitution is binding on, and unalterable in a unilateral fashion by, the federal and provincial legislatures. In a federal state, the judiciary can and must determine the limits of the authority of both the federal Parliament and the provincial legislatures.
“The current basis of judicial review in Canada is section 52(1) of the Constitution Act, 1982, which stipulates that the Constitution is the supreme law of Canada and that any law adopted by any level of government that is inconsistent with it is of no force and effect. The scope of judicial review has been broadened by the enactment of the Charter. The Charter imposes further limits upon the powers of legislative bodies, and those limits give rise to judicial review in the same way as the limits established by the distribution-of-powers provisions. Today, all laws, regardless of the subject matter, are subject to review by the courts on the basis that they may offend the fundamental rights and freedoms of individuals or groups under the Charter.
“Since 1982, therefore, Parliament and provincial legislatures have been subject to two principal sets of constitutional limitations on their powers: (1) the federal limitations, found in the Constitution Act, 1867, which are designed to protect federal values; and (2) the Charter limitations, which are designed to protect minority rights and civil libertarian values.”
Balance between judicial activism and judicial restraint
The Library of Parliament note goes on to say that judicial review can be viewed as a balance between “judicial activism” and “judicial restraint”:
“Judicial review permits, even requires, non-elected judges to make decisions of great public policy significance. Furthermore, Canada’s entrenchment of the Charter in 1982 was a conscious decision to increase the scope of judicial review. This has been termed “judicial activism,” which has also been defined as the judicial readiness to veto the policies of other branches of government. Critics of “judicial activism” say that the courts are not the proper venue for exercising decision-making authority to alter public policy. It is said to be undemocratic, not just in the sense of being anti-majoritarian, but also in the sense of eroding key elements of representative democracy. The term “judicial activism” is also used inconsistently, often being employed as a general term to describe rulings with which the commentator is in disagreement. The debate over judicial activism has been shaped by the perceived degree of “readiness” or “restraint” the courts are willing to use in their adjudication of government policies.
“Judicial restraint” may be characterized as the courts’ deference to the legislature, and stands in contrast to judicial activism. It reflects the unwillingness of judges to replace Parliament as a source of law, and their willingness to defer to democratically elected legislative bodies to make public policy. Part of “judicial restraint” would be that courts should operate with a presumption of constitutionality when examining a law. This would pay a proper respect to legislators, and minimize the danger of the imposition of judicial policy preferences. Another aspect of “judicial restraint” is that those court decisions which have struck down legislation on Charter grounds have often left room for an alternative or substitute law to be re-enacted in a form that still accomplishes the policy objectives of the original, invalid initiative. The effect of the Charter, therefore, is rarely to block a legislative objective, but, rather, to influence the design or implementation of legislation.”
Atlas topic, subject, and course
Robin MacKay, Karen Hindle, and Julie Vovan (2004), Parliament of Canada, The Courts and Parliament: Balancing the Roles, TIPS-87E, at https://lop.parl.ca/Content/LOP/ResearchPublications/tips/tip87-e.htm, accessed 19 May 2018.
Page created by: Ian Clark, last modified 19 May 2018.
Image: Radio Canada International, at http://www.rcinet.ca/en/2014/02/03/feb-03-1916-when-canadas-parliament-burned/, accessed 19 May 2018.