CONSTITUTIONAL LAW
02 JUDICIAL REVIEW
AND CONSTITUTIONAL
INTERPRETATION
Shigenori Matsui
1
INTRODUCTION




The Supreme Court of Canada
Legitimacy of Judicial Review
How should the Constitution be Interpreted?
What kind of role unwritten constitutional
principles should play?
2
I The Supreme Court of Canada

S. 101 of the Constitution Act, 1867,
authorized the Parliament “to provide for the
constitution, maintenance, and organization
of a general court of appeal for Canada.”

The Parliament enacted the Supreme Court
Act in 1875 and established the Supreme
Court of Canada.
3
4

At the time of the establishment, the
Supreme Court of Canada was not exactly a
final court for Canada: it was possible to
appeal to the Privy Council in U.K.
5

Attempt to abolish the appeal to the Privy
Council and make the Supreme Court of
Canada the final court for Canada
6

The Supreme Court of Canada comprises of
Chief Justice and eight associate Justices.
The total number of Justices is nine.

By statute, three must be chosen from
Quebec. By convention, three must be
chosen from Ontario, two from Western
provinces, and one from Atlantic provinces.
7
8


The justices are appointed by the Governor
General in Council.
Each appointee must be a judge of provincial
superior court or must have at least ten-years
experience at the bar of the province
9
10

Quorum is five judges. Majority of cases are
heard by nine judges but sometimes cases
are heard by five or seven judges.
11

The Supreme Court of Canada has an
appellate jurisdiction throughout Canada: it
could hear and decide issue on provincial law
as well.
12
13

Jurisdiction

In civil and criminal cases, the leave to appeal
must be issued.

In criminal cases, the appeal as of right is
possible if there is a dissent in the decision of the
court of appeal.

Governor General can refer the important
question of law to the Supreme Court of Canada
14

The judgment of the Supreme Court of
Canada is binding upon the case. It will
become a precedent for other courts to
follow.
15

S. 33 of the Constitution Act, 1982, allows the
override in some Charter cases.
16
II LEGITIMACY OF JUDICIAL REVIEW

Why can the courts review the constitutionality
of legislation?

Compare with Marbury v. Madison
17

Text of the Constitution Act, 1867 or the
Constitution Act, 1982?

Framers’ intent?

Necessity of judicial review?
18

How can we justify judicial review in light of
the democracy principle of the Constitution?

Democracy is nor a cardinal principle of the
Constitution?

Democracy needs accomplishment of substantive
values?
19

Does constitutionalism, rule of law, or
protection of rights of minorities justify judicial
review?
20

Sufficient public supervision over unelected
judges?

Dialogue theory?
21
III HOW SHOULD THE CONSTITUTION BE
INTERPRETED ?

Edwards v. AG for Canada (1929)

The living tree doctrine
22

Is it the role of the courts to change the
meaning of the Constitution to respond to the
social change?

How could the courts update the meaning of
the Constitution?
23

Interpretivism v. Noninterpretivism

Originalism v. Nonoriginalism
24

Where should the judges look to when they
interpret the Constitution?
25
IV UNWRITTEN PRINCIPLES

Could the courts rely upon unwritten principles
to review the constitutionality?
26

Rule of law principle

Roncarelli v. Duplessis [1959]

Reference re Manitoba Language Rights [1985]

BC v. Imperial Tobacco Canada [2005]

British Columbia v. Christie, [2007]
27