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Politicians, Judges, and the Charter

Published online by Cambridge University Press:  20 July 2015

L.W. Sumner
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The complaint is a familiar one: unelected, politically unaccountable judges are using their powers of judicial review to subvert the democratic process by shaping public policy in accordance with their own personal moral/political views. It is tempting to dismiss this complaint as the grumbling of those, usually (though not invariably) on the political right, who have been disaffected by court decisions with which they personally disagree. But this temptation must be resisted, since the critics of judicial review, such as Jeremy Waldron, raise important issues about the role of judges in a democratic political system. In his recent book A Common Law Theory of Judicial Review, Wil Waluchow responds to the critics' arguments. This Critical Notice outlines his response and assesses its adequacy.

Type
Critical Notice
Information
Canadian Journal of Law & Jurisprudence , Volume 21 , Issue 1 , January 2008 , pp. 227 - 238
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2008

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References

1. Constitution Act, 1982 , being Schedule B to the Constitution Act, 1982 (U.K.), 1982Google Scholar.

2. Ibid,s. 52(1).

3. Morton, F.L. & Knopff, Rainer, The Charter Revolution and the Court Party (Peterborough, ON: Broadview Press, 2000) at 149.Google Scholar

4. Ibid. at 33-34.

5. Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971) at 3.Google Scholar

6. Waluchow also stipulates that the wishes of the majority must be fully informed, including information about the effects of the measure they support ‘on the democratic process itself (113, emphasis in original). I will not deal with this further requirement, which raises essentially the same issues as the authenticity requirement.

7. It is not clear to me whether Waluchow thinks that this line of argument depends on a choice between the two conceptions of democracy he has discussed. As I see it, it is capable of standing on its own feet, independent of the earlier discussion.

8. Reference Re. s. 94(2) of the Motor Vehicle Act (B.C.), (1985) 2 S.C.R. 486 at 497Google Scholar.

9. This cannot be decisive, however, since democratic bodies are clearly capable of making sub-stantively undemocratic decisions through democratic procedures, e.g., by voting to transfer power to a dictator.

10. Elster, Jon, Ulysses and the Sirens: Studies in Rationality and Irrationality, rev. ed. (Cambridge: Cambridge University Press, 1984) at ch. 2Google Scholar.

11. I ignore here the complications introduced into this picture by s. 33 of the Canadian Charter, which allows the legislature to insulate (for a set period) its later actions from judicial review.

12. In Law and Disagreement (Oxford: Oxford University Press, 1999).Google Scholar

13. Edwards v. A.-G. Canada, (1930) A.C. 124 at 136 (cited by Waluchow at page 183)Google Scholar.

14. Cf. C.J., Dickson in R. v. Oakes, (1986) 1 S.C.R. 103 at 136Google Scholar:

The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter.…