Traditionally, systems of constitutional democracy fell into two categories: parliamentary sovereignty, characterized by the omnipotence of Parliament and the absence of any substantive limitations on its power; and judicial supremacy, characterized by the presence of restrictions on legislative power in the form of a judicially enforced, written constitution containing a bill of rights. Recently, scholars have noted that Canada’s Charter regime includes elements of both traditional systems and have proposed new ways of understanding the apparent “sharing” of legal authority between courts and legislatures in Canada. These “new models” incorporate several key features of the traditional models but purport to be distinctive, and more accurate, accounts of how legal authority is allocated. Key features of the new models include a bill of rights, judicial review of legislation, and the preservation of legislative finality over the bill of rights through an “override” mechanism. However, these new models fail to capture the division of lawmaking power that is formally entrenched in section 33 of the Canadian Charter of Rights and Freedoms. In addition, they do not provide an adequate account of how the legislative finality provided through the “override” mechanism distinguishes the new models from legislative supremacy. A proposed “hybrid” model accommodates the formal division of legal power in the Charter and raises new questions about the extent of legislative finality in Canadian constitutionalism. The hybrid model also explains Canada’s supposed lapse into de facto judicial supremacy as an indication of a nuanced and compartmentalized form of legislative supremacy. / Thesis / Master of Arts (MA) / Democratic governance was traditionally thought to require a choice between parliamentary sovereignty, with no restrictions on legislative power, and judicial supremacy, with restrictions on legislative power in the form of a judicially enforced, written constitution containing a bill of rights. Recently, scholars noting that Canada’s legal system includes elements of both traditional systems have proposed new ways of understanding the “sharing” of legal authority between courts and legislatures. These “new models” incorporate a bill of rights but allow legislatures to ignore or override these rights, thus preserving an element of parliamentary sovereignty. However, these new models fail to capture the division of lawmaking power that is formally entrenched in section 33 of the Canadian Charter of Rights and Freedoms. A new “hybrid” model accurately reflects this formal division of legal power and raises new challenges to the other new models of constitutionalism.
| Identifer | oai:union.ndltd.org:mcmaster.ca/oai:macsphere.mcmaster.ca:11375/18181 |
| Date | 11 1900 |
| Creators | Wyngaarden, Jeffrey |
| Contributors | Waluchow, Wil, Philosophy |
| Source Sets | McMaster University |
| Language | English |
| Detected Language | English |
| Type | Thesis |
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