The Quasi-Legislative Effect of the Supreme Court of Canada
25 March 2014
The Charter of Rights and Freedoms, 1982 symbolized a new era for Canada. Championed by Pierre Elliot Trudeau, the charter entrenched the fundamental rights and freedoms of Canadian society, and allowed for those rights to be enforced by any individual should they be infringed upon. The enactment of the Charter of Rights and Freedoms illustrates yet another shift from traditional Westminster style of governance, and created a new political atmosphere. The notion of Parliamentary supremacy has shifted to accommodate constitutional supremacy, where two institutions must work together to balance the will of the elected and the language of the charter. Constitutions, the most basic of political institutions, have the power to affect politics, by defining the rules of the political sphere. Though Parliament remains supreme, the Charter of Rights and Freedoms has empowered the judiciary with the ability to interpret it broadly and settle major questions of public policy, something the Bill of Rights, 1960 could never really achieve. The charter has in effect, given the judiciary a quasi-legislative authority.
This paper will argue that the Supreme Court of Canada has adopted a quasi-legislative approach in its decision making as a result of the Charter of Rights and Freedoms, 1982. Quasi-legislative is defined as having a partly legislative character by possession of the right to make rules and regulations, having the force of law (Merriam-Webster). In this paper, it is useful to define quasi-legislative as the court’s ability to influence policy, be it innocent or motivated, through charter enforcement and interpretation (McCormick, 2004).
Judicial Review in a post-Charter era
A strong judiciary is fundamental to functioning democratic societies. The quasi-legislative ability has always been, by convention, inherent in Canadian politics. But, the Charter enhanced this effect (Heard, 1991). Section 24(1) of the Charter states;
“anyone whose rights and freedoms, [as guaranteed by this Charter], have been infringed or denied may apply to a court of a competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances” (Canadian Charter of Rights and Freedoms, 1982).
This provision gave the judiciary the role of “supreme arbiter”. (Kelly, 2005). Also, it explicitly authorized judicial review in a way that until 1982 was not expressly detailed. The provision also justifies the philosophy that the constitution is “a living tree” which must grow and adapt to a changing society (Morton, 1995). Judges now were able to justify their quasi-legislative decisions, moving away from neutral, technical interpreters of the printed law. Judges find ways to interpret printed law in a manner that favours a particular outcome, usually of great public importance. This quasi-legislative...