POLI 324 Lecture Notes - Lecture 2: Antipositivism, Constitutionalism, Canada Elections Act
15 Jun 2018
School
Department
Course
Professor
POLI324
Class September 13th, 2017
Theories of Judicial Review
Lecture objectives
• Five objectives will be pursued over the next set of lectures.
1. A discussion of critical theories of judicial review – Left-wing Charter critics versus Conservative
Judicial Critics.
2. To consider dialogue theory as a justification for judicial review (Hogg and Bushell)
3. To consider critical positions regarding dialogue theory (Petter, Huscroft, Manfredi and Kelly)
4. To introduce a parliament-centered approach to the Charter (Hiebert, Kelly)
5. A consideration of alternative understandings of judicial review:
• Tushnet (strong form versus weak-form judicial review)
• Hall outs as ipleete-depedet istitutios
Critical Positions
• Focus on the appropriate method of judicial review to reconcile the Charter with democracy:
o Interpretivism :
▪ Conservative Judicial Critics
▪ Method of judicial review favored by the conservative judicial review critics
▪ Questions the accountability of judicial review and the ability of the constitution
to constrain judicial power
▪ Judicial review should apply the constitution consistent with fraers’ itet
▪ Judicial deference to original meaning advances democracy.
▪ The core of interpretivism is with the concern of hold judicial power
accountability
▪ Seeking for judicial review to be consistent with the constitution
▪ Also known as Framers intent—Original intent
▪ Suggesting that judicial review by an actor such as The supreme court can be
democratic so long as the court constraint its role within the framers of the
constitution.
▪ Applying the constitution
▪ Example : Issue of seual oietatio, hih ist i the hate. I he
the charter was being debated within parliament there was a motion that
equality rights, section 15 of the proposed charter of rights, should include
sexual orientation as an enumerated ground. (Jean Chretien at the time was
part of the judicial board). Motion from the NDP that the equality rights should
be expended by adding Sexual Orientation to the rights. The committee voted
to reject that motion, they had cleared record of original understanding, it was
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not to protect the category of sexual orientation, that was the argument given
by the conservative party when rejecting the motion.
▪ The court defines clear constitution intent.
▪ The only way of keeping judicial review democratic by keeping the constitution
consistent.
▪ The outoe doest atte the poess attes
o Non-interpretivism
▪ Left-Wing Charter Critcs
▪ Method of judicial review favored by the left-wing charter review critics
▪ Complete opposite of interpretivism
▪ Theory of judicial review that argues that the role of the court is to discover the
contemporary meaning of the constitution. Whereas the interpretivism argues
that the constitution needs to be applied as the original meaning.
▪ The ostitutio is a liig tee ad the purpose of judicial review is to discover
its contemporary meaning.
▪ Judicial review must reject a frozen rights approach advocated by
interpretivism.
▪ Judicial activism advances democracy.
o At the root of both theories is how to ensure that the judicial review is democratic.
Left-Wing Charter Critics
Assumptions
• SCC is a conservative institution
• Non-Interpretivist
• Clear characteristics of the courts perceived by the left-wing, one concern is that the SCC is a
conservative driven body (institution)
• SCC has employed a restrictive approach to rights. Because the SCC is a conservative driven
institution it is tended to favor the interest of corporations, it has recognized corporations as
legal individuals and therefore has access to charter rights, but have not recognized labor in the
same degree. For example: freedom of association. Labor organization argued that freedom of
association gave them the right to strike, and until recently the SCC rejected that. The court said
that the Right to strike is a collective right, freedom of expression is an individual right. Whereas
corporations have accessed to individual rights because they are recognized as legal individuals
(Tobacco rights)
• SCC has interpreted the Charter as a classical liberal document. Legal liberalism makes the
distinction between the private and the public round. The criticism of the charter of rights is that
it only applies to public power. What this means is that the Charter cannot remedy some of the
social issues are not being applied by the hate, ad that the hate is just ods ad its ot
going to be a remedy to some of the social problems, such as poverty.
• Some on the left believed that we should get rid of the Charter
• The legalization of politics has undermined democracy. This is why the Charter ultimately
eliees i a deoati fo of politis. the legalization of politics. “hift fo the paliaet
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arena where everyone can participate, to the judicial arena where only the selected can
participate.
Academics
• Andrew Petter – was AG of BC
• Michael Mandel
Conservative Judicial Critics
Assumptions:
• Judicial Supremacy has emerged.
• “CC has eeeded faes itet-because of the method of judicial review
• Judicial interpretation replaced by judicial creation—Courts tend to create what the constitution
means. If judicial review results in Courts creating the Constitutional meaning, therefore there
are no limits on their authority.
• Unconstitutional ruling by the SCC, SCC referred as Politicians in Robe.
• Policy distortion resulting from judicial activism and interference.
Academics
• Christopher Manfredi
• Rainer Knopff
• F.L Morton
2-Dialogic Approaches
• A constitutional theory associated with the work of Peter Hogg and Allison Bushell.
• The Charter has not resulted in judicial supremacy but an institutional dialogue between
Parliament and the Courts—dialogue in the sense of when the courts nullified a legislation and
how the Parliament responded to that nullification
• Dialogue theory presents a defense of judicial review, facilitating a broader discussion on what
the ostitutio ea: Boade ostitutioal oesatio.
• According to dialogue theory, the reason that judicial activism , striking down an act of
parliament is not undemocratic is because the court is performing only a very limited role. The
court is simply ruling whether the legislation is consistent with the constitution. The parliament
is therefore free to decide how to respond. The courts do not have the final word. The
parliament still plays a major role, and retains the upper hand
-Courts:
• Initiate dialogue through the invalidation of statutes as unconstitutional
• Dialogic instruments – Section 52, and 24(1)
• Only has the final word when the parliament let them have the final word
-Parliament
• Participate in dialogue when responding to judicial invalidation
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Document Summary
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