Limiting Rights: The Dilemma of Judicial Review

David Boyd Morley is a lawyer with the firm Milligan-Whyte & Smith in
Hamilton, Bermuda.

This monograph examines the tension between a Charter regime that
entrenches fundamental rights and the limits to those rights. The debate
is encapsulated in the question of how much discretion legislatures
should retain in pursuing policies that are in conflict with protected
rights. Hiebert’s focus is on Section 1 of the Charter of Rights and
Freedoms. She offers an excellent discussion of Section 1’s evolution
and of the dynamics of the political debate that led to its adoption.
Although intended by its drafters to ensure that governments would be
able to enact certain legislation in spite of the rights enumerated by
the Charter, Section 1, as now interpreted by the courts, places on
governments a requirement to justify limitations on individual rights
that is far more difficult to meet than either the federal or provincial
governments had envisaged. In criticizing the liberal individualism that
underlies the Charter, the author asks how a democratic society can
justify the existence of an unelected, unrepresentative, and
unaccountable body that has the authority to second-guess legislative
decisions. Limited Rights makes for compelling reading.