Abstract

This article addresses the legitimacy of the Canadian system of judicial review of state action for compliance with constitutional rights. It recalls the lively and sophisticated debate that took place on that issue within the larger process of federal-provincial negotiations surrounding the ‘patriation’ of the Constitution. It is suggested that in many ways that public debate parallels that which is still going on among well-known academics such as Jeremy Waldron and Ronald Dworkin, among others. Since the constitutional entrenchment of the Canadian Charter of Rights and Freedoms in 1982, Canadian courts have been given the power to rule on and remedy violations of fundamental rights by the state. However, the Charter also includes what is often termed a ‘notwithstanding’ clause, which enables legislatures to shield legislative provisions from judicial review as long as this will is clearly expressed. Hence the article further discusses whether such a clause can satisfy principled opponents to judicial review, more particularly whether it can meet the concerns expressed by Jeremy Waldron over the last 15 years or so. It is concluded that it cannot.