Commentary
I was having lunch with a friend. She was complaining about the man in her life. “He won’t take charge in the relationship,” she lamented, “And when he does, he does it wrong.”
Forty years ago, when Canada enacted the Charter of Rights and Freedoms, it asked the courts to take charge of our fundamental rights. They have done so, but they have done it wrong. And unlike my friend, we cannot get out of the relationship.
The Canadian legal system, derived from the British, is based in part upon the principle of legislative supremacy. Parliament and provincial legislatures can generally enact any laws within their jurisdictions as they wish. Before 1982, our constitution included only a few restrictions on those powers. Courts infrequently declared statutes to be unconstitutional, and when they did, usually it was because Parliament or a province had stepped on the other’s toes. For the most part, courts were limited in their powers and restrained in their approach, and legislative supremacy prevailed.
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