To continue this week’s theme of throwbacks, today’s post highlights a lecture on the evolution of judicial review through Canada’s 150 years. The Friends of the University of Alberta presented the Honourable Justice Russell Brown at the 2017 H. M. Tory Lecture this week. Justice Brown was an award-winning professor at the Faculty of Law until his meteoric rise to the bench starting in 2013.[1] After approximately a year and change at each of the Courts of Queen’s Bench and Appeal of Alberta, he now sits as a puisne justice at the Supreme Court of Canada.
Justice Brown discussed the importance of judicial review in light of the Constitution Act, 1867 (formerly, the BNA Act) and the Constitution Act, 1982, which includes the Charter of Rights and Freedoms.[2]
Canada’s separation of powers includes the executive branch (Prime Minister and Cabinet or Premier and Cabinet, as well as unelected government employees), the legislative branch (federal Members of Parliament or provincial Members of Legislative Assemblies), and the politically independent judicial branch. Judicial review occurs when a court convenes to consider the lawfulness of executive powers or legislation. Often, the primary legislation that delegates power to administrative bodies, such as the Human Rights Tribunal or the Workers’ Compensation Board, will allow a party to appeal decisions of that body to a court.[3]
Before the 1982 patriation of the Constitution, the BNA Act gave Parliament the sovereignty to enact any law it desired because the Constitution was enacted to be “similar in principle to that of the United Kingdom.”[4] Technically, Parliament still enjoys this right. However, in 1982 the new Constitution was given “Primacy” or supremacy over all other laws enacted by legislative or executive power.[5] This means that Canada’s courts can review legislation to ensure that it does not conflict with Canada’s body of constitutional law (including the Charter).
Between 1867 and 1981, courts reviewed legislation primarily to ensure that the Canadian federal system was maintained: that federal Parliament and provincial legislatures enacted laws according to their powers under sections 91 and 92 of the BNA Act, respectively.
From 1982 onward, the judiciary has taken on a more involved role. The introduction of the Charter as part of the supreme law of Canada requires that courts ensure there is a proper and lawful limit to the legislative infringement on the rights and freedoms of individuals.
But rights and freedoms are not absolute; they are subject to reasonable limits as are demonstrably justified in a free and democratic society.[6] Therefore, courts determine not only whether a law infringes on Charter rights, but whether it can be justifiably upheld.
Sometimes judges are accused of judicial activism; of overstepping their role as mere interpreters of the law. As Justice Brown put it, however, judges are more than just interpreters. They are legal referees in this law-versus-Charter-value game. Although legislators tend to enact laws that reflect the will of their electorate, sometimes Canada needs unelected constitutional law specialists to put the interests of, say, minority interests before that of written laws. For Justice Brown, this is true law and it is has evolved beyond interpreting merely questions of jurisdiction.
[1] Dean Paul Paton, Faculty of Law, University of Alberta, in his introduction of Brown J, HM Tory Lecture (2017).
[2] 30 & 31 Victoria, c 3 (UK) [Constitution Act, 1867]; being Schedule B to the Canada Act 1982, 1982 c 11 (UK) [Constitution Act, 1982].
[3] Alberta Human Rights Act, RSA 2000, c A-25.5, s 37(1); Workers’ Compensation Act, RSA c W-15, s 13.4(1).
[4] J Noel Lyon, “The Central Fallacy of Canadian Constitutional Law,” 22 McGill Law Journal 40, online: <www.lawjournal.mcgill.ca/userfiles/other/5264739-02.pdf> at 1; Constitution Act, 1867, supra note 2, Preamble, at para 1.
2000, c W-2.15, s 13.4(1).
[5] Constitution Act, 1982, supra note 2, s 52.
[6] Constitution Act, 1982, ibid, s 1.
