Skip to: Content
Skip to: Site Navigation
Skip to: Search


Canada gets its first US-style court review of national laws

By Andrew OrkinSpecial to The Christian Science Monitor / May 10, 1984



Vancouver, British Columbia

A quiet but dramatic revolution is under way in Canada's courts. The Supreme Court has handed down its first ruling under Canada's new Charter of Rights and Liberties.

Skip to next paragraph

In this first use of its new power of judicial review, the Supreme Court upheld a lower court ruling that the Law Society of Ontario had not violated the charter when it denied a South African-born lawyer the right to practice law in the province because he was not a citizen. The ruling set guidelines for future deliberations.

The charter, enacted in 1982 with the patriation of Canada's Constitution from England, reshapes Canada' legal system along the lines of the US system.

Courts in the United States have had an almost unique influence through their power to review and invalidate laws judged to violate the Constitution or the Bill of Rights.

In Britain, in contrast, Parliament is supreme. Courts do not have power of judicial review. Parliament can in theory (with the assent of the monarch) do anything it wants. Only it can remove laws.

Canadian and US constitutional law share roots in English common law. But until 1982 Canada's Constitution was a 19th-century British parliamentary statute held in London, and Canadian constitutional law closely resembled British law.

''The charter creates an entirely different situation for Canada,'' Chief Justice Brian Dickson said in a radio interview after his appointment last month by retiring Prime Minister Pierre Trudeau. ''We are now directed to strike down legislation which is offensive to the rights and liberties it defines. We will be the umpire between individuals' rights and the state.''

There has been a flurry of Charter of Rights judgments - more than a thousand - in lower courts in the first two years of its existence.

''We are asking the courts to take on this new role at full gallop,'' observes Bill Black, professor of constitutional law at the University of British Columbia. He adds, ''Canadian lawyers can look in any US journal to find a slew of possible arguments. Two hundred years of cases could be put all at once.''

This prompted Justice Dickson to appeal to lower court judges and the legal profession not to trivialize the Charter of Rights and Liberties through overuse.

Lower courts have already handed down some significant rulings concerning the rights of accused to counsel, the presumption of innocence, the burden of proof in narcotics cases, and convictions for crimes without fault.

Rulings of even wider effect have concerned powers of censorship, minority language and education rights, freedom of religion, collective bargaining rights , and the right of the government to allow the testing of the US cruise missile in Canada. These are seen to be shaping a uniquely Canadian jurisprudence.

Appointments to the Supreme Court are made by the prime minister.