POLI 478 Lecture Notes - Lecture 2: Parliamentary Sovereignty, Judicial Activism, Constitutionalism
12 Jun 2018
School
Department
Course
Professor
Contested Constitutionalism, the Charter, and Judicial Decisionmaking
Charter as contested constitutional document: not because it did anything new, but because it was a
new qualitative approach to pre-existing concepts, such as:
• Judicial review: concern about shift from procedural to substantive review
• Federalism review: distributing power between levels of gov.
o Identified which level of gov. could exercise certain authority
• Constitutional review: deals with citizen-gov. relationship - limits gov. power
o Qualitative difference between constitutional + common law-making functions of
courts: more difficult for legislature to change latter
Contested largely for political reasons:
1) Disagreement/uncertainty re. its political consequences
2) Potential consequences on relationship between courts + other branches of gov.
• s.52 of the Costitutio At delared that the ostitutio is the supree la of Caada: first
affirmation of constitutional > parliamentary supremacy
• s. also delared that ay la otrary to the ostitutio shall e of o fore or effet: gae
courts power to determine consistency of laws with constitution
o i.e. courts = new source of supreme law
Critics of the Charter: British parliamentary traditionalists (e.g. Sterling Lyon) + Canadian left (e.g.
Mandel, Hutchinson) osidered otio of etrehed rights outoded: Charter ieed as a 19th-
century, liberal, individualistic document.
• Judges still came from advantaged sectors of society (white, male, affluent): Charter could be
mobilized to resist other sectors
o Early Court decisions seemed to fuel this view
o Left believed progressive social change always came from legislature rather than courts
• Debate re. court-legislature relationship continues, but debate re. social change has shifted:
most now regard court as being more progressive
The whole purpose of a constitution is to limit political power – telling governments what they cannot
do, but also what they must do.
• If you accept that judicial power is a form of political power, judges have power over their own
cases - so how do constitutions limit political power in its judicial form?
• Successive govs. have deferred to SCC on politically contentious issues
o Compliance: govs. generally follow the Court on decisions
o Impact: does decision lead to the social change the Court expects?
▪ e.g. assisted suicide rulings shifted from Rodriguez v. BC, 1993 (prohibited) to
Carter v. Canada, 2015 (allowed): statutory right to assisted suicide established
in QC in the interim
What if the SCC is wrong? Can the Court ever be wrong?
• Justices do disagree with each other
• Court a e rog he…
o Court gets law wrong: but rare - cases get to SCC because law is ambiguous
o Disagreement re. political + social consequences of what the Court says
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Charter as contested constitutional document: not because it did anything new, but because it was a new qualitative approach to pre-existing concepts, such as: Judicial review: concern about shift from procedural to substantive review: federalism review: distributing power between levels of gov. Identified which level of gov. could exercise certain authority: constitutional review: deals with citizen-gov. relationship - limits gov. power, qualitative difference between constitutional + common law-making functions of courts: more difficult for legislature to change latter. Critics of the charter: british parliamentary traditionalists (e. g. sterling lyon) + canadian left (e. g. Critics of the charter: british parliamentary traditionalists (e. g. sterling lyon) + canadian left (e. g. mandel, hutchinson) (cid:272)o(cid:374)sidered (cid:374)otio(cid:374) of (cid:858)e(cid:374)tre(cid:374)(cid:272)hed rights(cid:859) out(cid:373)oded: charter (cid:448)ie(cid:449)ed as a 19th- century, liberal, individualistic document. The whole purpose of a constitution is to limit political power telling governments what they cannot do, but also what they must do.
