Judicial Review + Section 33:

Judicial review: what it is and why it matters

• Judicial review is the power of courts to review legislation and government actions and decide whether they violate constitutional/legal norms (in Canada, mainly the Charter and broader constitutional principles).

• If something violates the Charter, courts can:

  • Strike it down (invalidate it),

  • Modify how it applies (e.g., “read down”),

  • Or require government to justify limits under Charter analysis.

Core idea: courts act as a rights-check on majoritarian lawmaking.

• Section 33 allows Parliament or a provincial legislature to declare that a law will operate “notwithstanding” certain Charter rights.
  

• It can override only:

  • Section 2 (fundamental freedoms), and

  • Sections 7–15 (legal rights + equality rights).

• It cannot override other major Charter sections like:

  • Democratic rights (e.g., voting),

  • Mobility rights,

  • Language rights (these are outside s.33’s reach).
    
    Time limit: an override declaration lasts up to 5 years, and must be renewed to continue.
    

Why s.33 is philosophically important (your point made explicit)

• It shows courts aren’t “supreme” in the final word sense: legislatures can respond if they believe courts misinterpreted the Charter or overreached.

• Even if rarely used, it changes the structure of constitutional authority by keeping legislatures in the game.

• “Barely used, but affects judicial behavior” (explicit)

• Because legislatures can override, courts know that some rulings may trigger a political response.
  This can shape judicial behavior indirectly (for example, encouraging courts to write decisions that are reason-giving, institutionally modest, or framed in ways legislatures can respond to through amendments).
  

• The big takeaway: s.33 supports a system where courts and legislatures interact rather than one branch permanently dominating.

Waldron’s argument (against judicial review)

Waldron claims judicial review undermines democracy because:

1. Judges aren’t elected, yet they can strike down laws made by elected representatives.
   
   

2. It transfers major moral/political decisions from democratic legislatures to courts.
   
   

3. It assumes or pretends there’s a consensus on rights, when in reality there is deep disagreement.
   
   

4. It undermines equal participation in self-government:
   
   

   • citizens are supposed to govern themselves through democratic processes,
     
     

   • but judges’ views end up trumping what citizens (through legislatures) decided.

Waluchow’s core thesis (in defense of review)

• Charters should be treated like “living trees.”

  • They’re flexible and evolving, not frozen in the past.

• Judicial review can be compatible with democracy when properly understood.
  

Waluchow rebuttal 1: Living tree = framework for disagreement (not a false consensus)

• Waluchow says Waldron makes a key mistake: he treats charters as if they contain fixed answers to moral questions.

• Instead, charters provide a framework/process for working through disagreement over time.

• We don’t need consensus on the “correct” rights outcomes—only agreement to use the charter framework to argue, interpret, revise, and refine.
  

Waluchow rebuttal 2: Against the “idealized legislature”

• Waldron’s critique relies on an overly optimistic picture of legislatures as rational, fair, and rights-sensitive.

• Waluchow says that’s unrealistic because real legislatures are affected by:

  • Partisanship

  • Electoral pressure

  • Prejudice

  • Lobbying

  • Disregard for minorities

  • Media influence

• So, judicial review can act as a necessary corrective when legislatures predictably fail in these ways.
  

Waluchow rebuttal 3: Against “democratic illegitimacy”

• Waldron: judicial review violates equal participation.

• Waluchow: judicial review can enhance democracy by protecting the preconditions for democracy, such as:

  • meaningful rights of participation,

  • a fair political process,

  • protections that prevent majority power from crushing minority voices.

• Key idea: courts + legislatures can function as an institutional partnership that improves democratic fairness.
  

Waluchow on “If judges were elected…”

• Electing judges would make the problem worse, not better:

  • judges would chase majority approval to win elections,

  • their decisions would become more political/majoritarian,

  • minorities would be ignored even more consistently.

Unelected judges, by contrast, are better positioned to uphold charter rights without campaigning pressure.

Kent Roach: judicial review as “democratic dialogue” (Canada’s signature idea)

Roach’s claim

• Judicial review in Canada produces dialogue between courts and legislatures.

• This protects rights without creating pure judicial supremacy.

• It can enhance democracy by forcing repeated public reasoning and deliberation.

• It balances institutional strengths:

  • courts: rights reasoning, justification, principled constraints

  • legislatures: policy-making capacity, democratic responsiveness
    

How the dialogue works (step-by-step)

1. Legislature passes a law.

3. Courts review it for Charter compliance.

   • If unconstitutional, courts may strike it down or limit how it applies.

   • Courts give reasons explaining the Charter problem.

4. Legislature responds:

   • revises/redesigns the law to address Charter concerns,

   • uses democratic debate and accountability to adjust policy.

5. Courts can review the revised law.

6. The process can repeat (ongoing dialogue).

Strong-form vs weak-form review + Canada’s hybrid model

Strong-form vs weak-form review + Canada’s hybrid model

• Strong-form judicial review: courts are effectively supreme; they have the final word on constitutionality (often associated with the U.S. model).

• Weak-form judicial review: courts can criticize or declare inconsistency, but legislatures retain final authority.

• Canada’s hybrid model: combines:

  • strong judicial review and

  • a legislative override option (s.33)
    

• Roach’s view: this hybrid structure is especially balanced because it:

  • preserves serious rights review,

  • avoids total judicial supremacy,

  • and keeps democratic accountability through legislative response options.

Notwithstanding Clause Criticisms

1. Undermines the Charter’s purpose

   • The Charter is supposed to protect rights against majority will.

   • s.33 lets majorities opt out of those protections.

   • Criticism: constitutional rights shouldn’t have an “opt-out clause.”

2. Rule of law concerns

   • Rule of law values include generality, predictability, stability.

   • If governments can suspend rights protections, citizens can’t reliably count on consistent rights protections → creates uncertainty.

3. Federalism / uneven rights protection

   • Provinces can suspend rights differently.

   • This can create a patchwork where rights vary by province, weakening the idea of equal rights protection across the country.
     

Concrete Example

• Quebec Bill 21 is often discussed as an example because it restricts certain public-sector workers from wearing religious symbols.

• In your notes, the key exam point is how it illustrates:

  • provincial use of override logic,

  • debates about minority rights (e.g., impacts on Muslim women),

  • and the federalism worry (different rights outcomes across provinces).
    

Frequency point (explicit)

• s.33 is barely used (especially compared to how controversial it is),

• and it has never been used federally.

Even so, it still matters because it shapes the structure of constitutional power and supports the “dialogue” model.