Download this publication - PULP

Towards a framework for understanding constitutional deference 297
points out that the argument that a decision by a majority is always fairer
than a decision by a minority ‘ignores the fact that decisions about rights
against the majority are not issues that in fairness ought to be left to the
majority ... [T]o make the majority judge in its own cause seems
inconsistent and unjust.’ 29 Hence, judicial review is part of the process of
ensuring that rights are protected and the Constitution is upheld.
From this brief discussion of some of the academic debates surrounding
the role of the courts in a democracy, it is clear that there is a range of
reasonable and defensible views which a court could adopt. Whatever
jurisprudential position courts adopt, it is clear that this position will be
crucial in determining a court’s approach to constitutional deference. The
Canadian and English courts – which have been explicit about the
importance of constitutional competence as a key consideration in
prompting deference to executive and legislative decision making – provide
a good example. 30 In the United Kingdom, with its strongly ingrained
tradition of parliamentary sovereignty, courts may be more inclined to
adopt a position akin to that of Waldron. 31
Canadian courts, on the other hand, appear to be more ready to
embrace their ‘democratic’ role in judicial review and see themselves as
engaged in the democratic process when undertaking constitutional review.
In one of the leading cases on deference in Canada, McLachlin J held:
As with context, however, care must be taken not to extend the notion of
deference too far. Deference must not be carried to the point of relieving the
government of the burden which the Charter places upon it of demonstrating
that the limits it has imposed on guaranteed rights are reasonable and
justifiable. Parliament has its role: to choose the appropriate response to
social problems within the limiting framework of the Constitution. But the
courts also have a role: to determine, objectively and impartially, whether
parliament’s choice falls within the limiting framework of the Constitution.
The courts are no more permitted to abdicate their responsibility than is
parliament. To carry judicial deference to the point of accepting parliament’s
view simply on the basis that the problem is serious and the solution difficult,
would be to diminish the role of the courts in the constitutional process and to
weaken the structure of rights upon which our constitution and our nation is
founded. 32
29 Dworkin (n 9 above) 142.
30 For a detailed discussion comparing the English and Canadian approaches, see
McLean (n * above) 26 - 60.
31 See, eg, R v DPP ex parte Kebilene [2000] 2 AC 326 381; International Transport Roth
GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158 para 139; R
(Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions;
R (Holding and Barnes Plc) v Secretary of State for the Environment, Transport and the Regions;
Secretary of State for the Environment, Transport and the Regions v Legal and General Assurance
Society Ltd [2001] UKHL 23 para 70; R (on the application of ProLife Alliance) v
British Broadcasting Corporation [2003] UKHL 23 paras 75 - 76; and A v Secretary of State
for the Home Department; X v Secretary of State for the Home Department [2004] UKHL 56
paras 26 - 29.
32 RJR-MacDonald Inc v Canada (AG) (1995) 3 SCR 199 para 136.