Legitimizing Judicial Review under the Charter: Democracy or Distrust?

ROBYN MARTIN

ABSTRACT

Some Canadians, particularly those who were opposed initially to rights-entrenchment, are struggling to fit The Charter of Rights and Freedoms into their view of Canadian law and society. Patrick J. Monahan has developed a theory of judicial review which he maintains advances his values of democracy and community and so avoids the elitist practice of allowing judges to make substantive choices. Monahan, however, distinguishes his procedural theory of judicial review from that of American theorist John Hart Ely, author of Democracy & Distrust, by embracing the critical legal theory premise that law is politics at the beginning of his enterprise. Although Monahan believes this different starting point saves his project from the fate that Ely's suffers of being unable to consistently differentiate between procedural and substantive choices, his project suffers from the same flaw. However, a reconciliation of Monahan's democratic and communitarian values with the Charter can be more adequately effected through a theory of judicial review founded on the notion of the general will as developed by Alan Brudner.

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Citation: (1991) 49(1) U.T. Fac. L. Rev. 62.
Copyright © 1991. University of Toronto Faculty of Law Review.
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