Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism

Henri R. Pallard is a professor of law and justice at Laurentian
University.

According to Manfredi, the power of the judiciary to modify decisions
taken by democratically elected representatives poses a serious threat
to the political principles that underpin the ideal of liberal
constitutionalism—an attempt to reconcile two competing constitutional
ideals, majority rule and individual freedom. Judicial review may itself
become the greatest threat to the most important right in a
democracy—the right to self-government—given the manner in which it
has been used to enforce the principle of constitutional supremacy since
the advent of the Charter. Having recourse to the judiciary to safeguard
individual rights enshrined in the Constitution is paradoxical; since
the judiciary determines the meaning of the Constitution, which in turn
sets the limits to its power, ultimately there are no constitutional
limits on the exercise of judicial power. When used to design and create
new social policy, the power of the judiciary poses a threat to the
values that underlie our democratic tradition. And the doctrine of
judicial supremacy supplants the principle of constitutional supremacy.

Manfredi concludes that the provincial legislatures and the federal
parliament should not hesitate to fall back on section 33 of the
Charter. The notwithstanding clause allows them to suspend certain
provisions of the Charter for a period of five years. Its use would
allow the legislative arm of government to correct the undue advantage
in power that the judicial arm currently enjoys in the area of
constitutional interpretation.

The author concludes by presenting a theoretical justification of the
legislative override. It cannot lie in the doctrine of parliamentary
supremacy (this doctrine is the very antithesis of constitutional
supremacy), but lies instead in the idea that “the legislative and the
judicial branches of government possess equal responsibility and
authority to inject meaning into the indeterminate words and phrases of
the Charter.” This requires that we abandon the theory according to
which the judiciary is the authoritative source of constitutional
interpretation. There is no reason why the courts should have a lock on
constitutional interpretation; the legislator also has a legitimate role
to play.