Separate But Not Apart: The Role of the Courts in Canada's Post-Charter Democracy

Abstract

Constitutional scholar Martha Jackman argues that judicial review in accordance with the Canadian Charter of Rights and Freedoms can promote democratic decision-making by the executive and legislative branches of government. She examines two recent social welfare cases in which such review should, but did not occur. Deficiencies in the decision-making processes at issue in each case deprived those affected of a meaningful opportunity to participate in decisions that impacted their constitutionally protected interests. She considers how judicial review on Charter grounds can improve the democratic tenor of decision-making in this context. Professor Jackman argues that judicial review that reinforces and expands existing meanings of democracy and that protects democratic participation in government decision-making is an appropriate and even necessary role for the courts in Canada’s post-Charter democracy.

Keywords: constitution, Canada, Charter, democratic, decision-making, government, social, welfare, judicial review, democracy, 1982, participation