Unseating Responsible Government.

This major paper from Geoffrey Sigalet, Kerry Sun, and Yuan Yi Zhu charts the development of constitutional law in Canada following the patriation of the Charter of Rights and Freedoms. They find that things have played out as many predicted: across every domain of Charter jurisprudence, we have seen a lack of restraint on the part of the judiciary, undermining Canada’s parliamentary democracy in the process.

The findings are numerous, but some highlights are:

Canada did not adopt judicial supremacy in 1982
The paper argues that the Charter was not meant to erase Canada’s Westminster inheritance. It was drafted with limits, including section 1 and section 33, to preserve a major role for legislatures, both in contesting, and co-interpreting the meaning and extent of rights, especially vis-à-vis other policy objectives and priorities.

The real constitutional shift has occurred through judicial interpretation
A central claim in the paper is that courts have gradually expanded their own role through doctrines such as the living tree, the Oakes proportionality balancing exercise, expansive section 7 review, reasonable hypotheticals under section 12, and broad section 15 equality jurisprudence.

Responsible government is being displaced by litigation government
Legislatures still retain all the power to pass laws, but the outer boundaries of policy are increasingly set in court. In fact, the trends in judicial decisions have disincentivized legislatures from taking on difficult policy questions, as we see that courts are less deferential to legislatures, and end up deciding the issue in the end. This has effectively changed the balance of power and approach to governing in the country, away from democratically elected legislatures.

Power is a watershed case
The paper treats Canada v. Power, 2024 as a major departure because it opens the door to Crown damages for legislation that is later found to be unconstitutional. It is a rubicon-crossing moment, in that courts have historically been able to review laws once enacted in the Westminster system, but the legislative process itself has not been scrutinized. This decision therefore risks judicial supervision of parliamentary proceedings.

The proper use of Section 33 needs to be normalized as part of the Charter architecture
The notwithstanding clause is not a constitutional embarrassment. It is part and parcel of it, and one of the explicitly chosen mechanisms designed to preserve democratic responsibility under the Charter. It should be used well and we can debate the merits of each use, but its existence and the fact of its use should not be up for debate within the system we have at present.

Rights must be protected politically as well as judicially
Many think that rights are better protected by courts, whereas in fact, many of the key rights we now take for granted were developed by legislatures, not the courts. Legislatures have their own duty to reason about rights, the common good, and the constitutional order – and how to balance them. And they are arguably much better suited to than courts.

We are very grateful to our esteemed advisory board of former judges and senior lawyers – The Hon. Russell Brown, Marc Nadon, Richard Ekins – and a special thanks to former Supreme Court Justice Jack Major for his foreword to the paper.

We hope this paper – and the broader work of our Landmark Cases Council and Judicial Foundations Project – will prompt spirited debate about the future of judicial philosophy in Canada.