1 Morgentaler, Smoling and Scott v. The Queen, [1988] 1 S.C.R. 30.

2 Ibid., 161–84.

3 Morgentaler v. The Queen, [1976] 1 S.C.R. 616, at 672 (accepting Parliament's judgment that “the desire of a woman to be relieved of her pregnancy is not, of itself, justification for performing an abortion”).

4 Morgentaler, Smoling and Scott v. The Queen, [1988] 1 S.C.R. at 46.

5 Article VI of the United States Constitution, however, implicitly gives state courts the power to review state legislation for conformity with the federal Constitution.

6 Hamilton, Alexander, Madison, James and Jay, John, The Federalist Papers, edited by Rossiter, Clinton (New York: New American Library, 1961), 464–72.CrossRefGoogle Scholar

7 I Cranch (5 U.S.) 137 (1803).

8 Hamilton, Madison and Jay, The Federalist Papers, 466.

9 Ibid., 485.

10 See Fletcher v. Peck, 6 Cranch 87 (1810); Martin v. Hunter's Lessee, 1 Wheaton 304 (1816); Cohens v. Virginia, 6 Wheaton 264 (1821).

11 See, for example, Commager, Henry Steele, “Judicial Review and Democracy,” in Levy, Leonard (ed.), Judicial Review and the Supreme Court (New York: Harper and Row, 1967), 73Google Scholar; and Commager, Henry Steele, Majority Rule and Minority Rights (New York: Oxford University Press, 1943).Google Scholar

12 Dred Scott v. Sandford, 60 U.S. 393 (1857).

13 Civil Rights Cases, 109 U.S. 3 (1883); Plessy v. Ferguson, 163 U.S. 537 (1896).

14 See, for example, Lochner v. New York, 198 U.S. 45 (1905); Adkins v. Children's Hospital, 261 U.S. 525 (1923); Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935); United States v. Butler, 297 U.S. 1 (1936); Carter v. Carter Coal Co., 298 U.S. 238 (1936).

15 Brown v. Board of Education, 347 U.S. 483 (1954).

16 Cover, Robert M., “The Origins of Judicial Activism in the Protection of Minorities,” Yale Law Journal 91 (1982), 1287–1316.CrossRefGoogle Scholar The constitutional basis of Brown is criticized in Berger, Raoul, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge: Harvard University Press, 1977), 117–33.Google Scholar

17 See Yarborough, Tinsley E., “The Political World of Federal Judges as Managers,” Public Administration Review 45 (1985), 660.CrossRefGoogle Scholar

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20 Ely deals with each of these subjects in a separate chapter. See Ibid., 73–104 (policing the process of representation), 105–34 (clearing the channels of political change), and 135–80 (facilitating the representation of minorities).

21 See, for example, Whyte, John D., “Fundamental Justice: The Scope and Application of Section 7 of the Charter,” Manitoba Law Journal 13 (1983), 455Google Scholar; Fairley, H. Scott, “Enforcing the Charter: Some Thoughts on an Appropriate and Just Standard for Judicial Review,” Supreme Court Law Review 4 (Special Issue 1982), 234–38.Google Scholar

22 Recent examples in which this structural difference has been important include the government's ability to push its drug patent and immigration legislation through Parliament despite significant opposition. The same might also be said of the Meech Lake Accord.

23 See Perry, Michael J., The Constitution, The Courts, and Human Rights (New Haven: Yale University Press, 1982).Google Scholar

24 Miller, Arthur Selwyn, Toward Increased Judicial Activism (Westport: Greenwood Press, 1982), 6, 249.Google Scholar A good example of Miller's theory of judicial review is Justice Thurgood Marshall's argument against capital punishment in Gregg v. Georgia, 428 U.S. 153, 231–41 (1976) (Marshall, J. dissenting).

25 Miller, Toward Increased Judicial Activism, 247. One should note that even if Miller is correct it does not necessarily follow that judges have the sole, or even primary, responsibility to write this fundamental law.

26 See, for example, Smith, Jennifer, “The Origins of Judicial Review in Canada,” this Journal 16 (1983), 115–34.Google Scholar

27 Russell, Peter H., The Judiciary in Canada: The Third Branch of Government (Toronto: McGraw-Hill Ryerson, 1987), 93.Google Scholar

28 The reference procedure was included in the Supreme Court Act of 1875. Its constitutionality was upheld in A.-G Ont v. A.-G. Canada, [1912] A.C. 571.

29 Morton, F. L., “The Political Impact of the Canadian Charter of Rights and Freedoms,” this Journal 20 (1987), 47.Google Scholar

30 Romanow, Roy, Whyte, John and Leeson, Howard, Canada Notwithstanding: The Making of the Constitution, 1976–1982 (Toronto: Carswell-Methuen, 1984), 248.Google Scholar

31 For an account of this struggle, see Ibid., 245–46.

32 Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Thirty-second Parliament, First Session, 46:32 (January 27, 1981). The minister of justice, Jean Chrétien, underscored this point later in the hearings (Ibid., 43).

33 Ref. re s. 94 (2) of the Motor Vehicle Act (B.C.) [1985] 2 S.C.R. 486. The Court held that “fundamental justice” prohibited provincial legislatures from establishing absolute liability offences.

34 Ibid., 509. For a discussion of Justice Lamer's argument, see Monahan, Patrick, Politics and the Constitution: The Charter, Federalism and the Supreme Court of Canada (Toronto: Carswell, 1987), 84–85.Google Scholar

35 R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at 344, 331.

36 Re Singh and Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at 213–14.

37 Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441, at 455.

38 R. v. Oakes, [1986] 1 S.C.R. 103. These criteria are examined below.

39 See Re Singh and Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at 209 (per Wilson, J.).

40 Russell, Peter H., “The Effect of a Charter of Rights on the Policy-Making Role of Canadian Courts,” Canadian Public Administration 25 (1982), 15, 32CrossRefGoogle Scholar.

41 See Morton, “The Political Impact of the Canadian Charter of Rights and Freedoms,” 55. See also, Mallory, J. R., The Structure of Canadian Government (Toronto: Gage, 1984), 445.Google Scholar

42 Monahan, Politics and the Constitution, 7–8.

43 Ibid., 68.

44 Ibid., 98.

45 Aleinikoff, “Constitutional Law in the Age of Balancing,” 974, 978.

46 Chayes, Abram, “The Role of the Judge in Public Law Litigation,” Harvard Law Review 89 (1976), 1282–83.CrossRefGoogle Scholar

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48 Ibid., 46–48. See also Russell, The Judiciary in Canada, 5–10.

49 Bickel, Alexander M., The Supreme Court and the Idea of Progress (New York: Harper and Row, 1970), 175.Google Scholar

50 Horowitz, Donald L., The Courts and Social Policy (Washington: Brookings, 1977), 33.Google Scholar

51 Ibid., 34–56.

52 Mackay, A. Wayne, “Fairness After the Charter: A Rose By Any Other Name?,” Queen's Law Journal 10 (1985), 297.Google Scholar

53 There is evidence that the Court is uncomfortable with the implications of the criteria it has established under section 1. See Monahan, Politics and the Constitution, 62–71.

54 R. v. Oakes, [1986] 1 S.C.R. 103, at 138–39.

55 Re Singh and Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at 218–19.

56 Horowitz, The Courts and Social Policy, 45. See also Strayer, Barry, The Canadian Constitution and the Courts: The Function and Scope of Judicial Review (Toronto: Butterworths, 1983), 56–57.Google Scholar

57 Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373.

58 Ibid., 424–25. Laskin discusses the question of extrinsic evidence at 422–27.

59 Wolf, Eleanor, Trial and Error: The Detroit School'Segregation Case (Detroit: Wayne State University Press, 1981), 259–60.Google Scholar See also Elliott, Rogers, Litigating Intelligence: IQ Tests, Special Education, and Social Science in the Courtroom (Dover, Mass.: Auburn House, 1987).Google Scholar

60 On the information-gathering weaknesses of appellate courts, see Marvell, Thomas, Appellate Courts and Lawyers: Information Gathering in the Adversary System (Westport: Greenwood Press, 1978), 184.Google Scholar See also Lieberman, Jethro K. (ed.), The Role of Courts in American Society: Final Report of the Council on the Role of Courts (St. Paul: West Publishing, 1984), 148.Google Scholar On the axiomatic treatment of hypotheses, see Rossum, Ralph A., “The Problem of Prison Crowding: On the Limits of Prison Capacity and Judicial Capacity,” Benchmark 1 (1984), 23.Google Scholar

61 See Davis, Peggy C., “‘There is a Book Out…’: An Analysis of Judicial Absorption of Legislative Facts,” Harvard Law Review 100 (1987), 1539–1604CrossRefGoogle Scholar.

62 Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441.

63 Ibid., 454.

64 Morgentaler, Smoling and Scott v. The Queen, [1988] 1 S.C.R. 30, at 63; emphasis added.

65 Ibid. For Justice Wilson's argument on this point, see Ibid., 162–72.

66 Ibid., 72–73.

67 Ibid., 70 (citing [1985] 2 S.C.R. 486, at 503).

68 Moran, Rachel F., “Reflections on the Enigma of Indeterminacy in Child Advocacy Cases,” California Law Review 74 (1986), 627.CrossRefGoogle Scholar

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71 Morton, “The Political Impact of the Canadian Charter of Rights and Freedoms,”53. See also Monahah, Politics and the Constitution, 37–38. Charter decisions in this area include Therens v. The Queen, [1985] 1 S.C.R. 613; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. V. Oakes, [1986] 1 S.C.R. 103; and Hunter v. Southam Inc, [1984] 2 S.C.R. 145.

72 See, for example, Horowitz, The Courts and Social Policy, 171–254. One should not forget that it was in a case concerning provincial penal law that the Court first articulated a substantive interpretation of the “principles of fundamental justice.” Indeed, Justice Wilson warned in that case against the artificial separation of substance and procedure. See Ref. re s. 94 (2) of the Motor Vehicle Act (B.C), [1985] 2 S.C.R. 486, at 531.

73 The judicially created exclusionary rule in the United States is a case in point. The purpose of the rule is to deter law enforcement authorities from engaging in illegal searches and seizures. It operates most directly, however, on prosecutors and thus assumes a certain type and level of communication between prosecutors and law enforcement officials. This communication varies widely among jurisdictions, a fact that significantly affects the rule's operation. See Schlesinger, Stephen R., “Criminal Procedure in the Courtroom,” in Wilson, James Q. (ed.), Crime and Public Policy (San Francisco: Institute for Contemporary Studies, 1983), 192–200.Google Scholar It should be noted that an exclusionary rule is constitutionally entrenched in Canada by section 24 (2) of the Charter, although its scope must still be defined by the Supreme Court.

74 Horowitz, The Courts and Social Policy, 35.

75 Ibid., 36.

76 The disadvantages of incrementalism are discussed in Goodin, Robert E., Political Theory and Public Policy (Chicago: University of Chicago Press, 1982), 19–38.Google Scholar

77 Compare the Motor Vehicle Reference, for example, with Curr v. The Queen, [1972] 26 D.L.R. (3d) 603 and Duke v. The Queen, [1972] 28 D.L.R. (3d) 129. In the latter two cases the Court gave a narrow, strictly procedural reading to the “due process” and “fundamental justice” clauses of the Canadian Bill of Rights.

78 See Morgentaler, Smoling and Scott v. The Queen, [1988] 1 S.C.R. at 133 (McIntyre, J., dissenting).

79 See, for example, Rossum, Ralph A., “Plessy, Brown, and the Reverse Discrimination Cases: Consistency and Continuity in Judicial Approach,” American Behavioral Scientist 28 (1985), 792–806CrossRefGoogle Scholar; Graglia, Lino: “When Honesty Is ‘Simply… Impractical’ For the Supreme Court: How The Constitution Came to Require Busing for School Racial Balance,” Michigan Law Review 85 (1987), 1153–82CrossRefGoogle Scholar; and Rhoden, Nancy K., “Trimesters and Technology: Revamping Roe v. Wade,” Yale Law Journal 95 (1986), 639–97.CrossRefGoogle ScholarPubMed

80 Horowitz, The Courts and Social Policy, 38–45.

81 The attraction of these groups to litigation is the relative ease of access to the judicial process and the potentially significant spoils of victory. A favourable decision on constitutional grounds transforms the interest into a right, providing the group with a trump card in future policy deliberations. See Louthan, William C., The Politics of Justice (Port Washington, N.Y.: Kennikat Press, 1979).Google Scholar

82 See Wasby, Stephen L., “Civil Rights Litigation By Organizations: Constraints and Choices,” Judicature 68 (1985), 345–50.Google Scholar

83 Morton, “The Political Impact of the Canadian Charter of Rights and Freedoms,” 40–41. Venue selection may be less important in Canada than in the United States because of Canada's unitary court system. However, differing positions taken by provincial courts of appeal may influence where interest groups launch test cases. For insights into the American experience, see O'connor, Karen and Epstein, Lee, “Rebalancing the Scales of Justice: Assessment of Public Interest Law,” Harvard Journal of Law and Public Policy 7 (1984), 483–505Google Scholar; and Heck, Edward V. and Stewart, Joseph Jr., “Ensuring Access to Justice: The Role of Interest Group Lawyers in the 60s Campaign for Civil Rights,” Judicature 66 (1982), 84–95.Google Scholar

84 Miller, Arthur Selwyn and Barron, Jerome A., “The Supreme Court, The Adversary System, and the Flow of Information to the Justices: A Preliminary Inquiry,” Virginia Law Review 61 (1975), 1227.CrossRefGoogle Scholar

85 Cumming, Tom, “Fundamental Justice in the Charter,” Queen's Law Journal II (1986), 151.Google Scholar

86 Wald, Michael S., “Thinking About Public Policy Toward Abuse and Neglect of Children: A Review of Before The Best Interests of the Child,” Michigan Law Review 78 (1980), 678–79.CrossRefGoogle Scholar

87 This was especially apparent in R. v. Edwards Books and Arts Ltd., [1986] 2 S.C.R. 713. The other important decision in this area is R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295.

88 Horowitz, The Courts and Social Policy, 44. In 1975, the Canadian Supreme Court acquired significantly greater control over its own docket with the elimination of appeals as of right in civil cases involving more than $10,000. See Russell, The Judiciary in Canada, 344–49. On the possible implications of this change in this context see Wilson, Bertha, “Decision-Making in the Supreme Court,” University of Toronto Law Journal 36 (1986), 234.CrossRefGoogle Scholar

89 Horowitz, The Courts and Social Policy, 51.

90 Parliament held a free vote on several abortion proposals on July 28, 1988. The proposal that came closest to adoption was a pro-life proposal that would have prohibited abortion unless the life of the mother were threatened. This proposal was defeated by a vote of 118 to 105. No other proposal, including the one put forward by the government, received more than 76 votes.

91 Horowitz, The Courts and Social Policy, 52–53.

92 Corsi, Jerome R., Judicial Politics: An Introduction (Englewood Cliffs: Prentice-Hall, 1984), 302.Google Scholar The United States Supreme Court, for example, found it exceedingly difficult to design a plan for implementing school desegregation after Brown. The best it could do was to exhort states to proceed with “all deliberate speed” toward desegregation. See Brown v. Board of Education (II), 349 U.S. 294, 301 (1955). See also Graglia, “When Honesty is ‘Simply… Impractical’ for the Supreme Court,” 1156.

93 Horowitz, Donald L., “The Judiciary: Umpire or Empire?” Law and Human Behavior 6 (1982), 137.CrossRefGoogle Scholar

94 Roe v. Wade, 410 U.S. 113 (1973).

95 Rubin, Eva, Abortion, Politics, and the Courts: Roe v. Wade and its Aftermath (Westport: Greenwood, 1982), 161.Google Scholar

96 Miller and Barron, “The Supreme Court, The Adversary System, and the Flow of Information to the Justices,” 1222.

97 Chayes, “The Role of the Judge in Public Law Litigation,” 1310; and Carter, Leif H., “When Courts Should Make Policy: An Institutional Approach,” in Gardiner, John (ed.), Public Law and Public Policy (New York: Praeger, 1977), 148, 155.Google Scholar For an opposing view, see Glazer, Nathan, “Should Judges Administer Social Services?” Public Interest 50 (1978), 64–80.Google Scholar

98 Miller and Barron, “The Supreme Court, The Adversary System, and the Flow of Information to the Justices,” 1233–44. These include remanding cases for trial court adjudication of such facts, adopting specific rules governing judicial notice, appointing a panel of social scientists to assist the Court, rigorous licensing of the Supreme Court bar and encouraging the justices to request further information on questions of social facts when the information immediately available is unclear. For similar recommendations with respect to the Canadian Court, see Wilson, “Decision-Making in the Supreme Court,” 242–44.

99 Diver, “The Judge as Political Powerbroker,” 103.