Parliamentary Constraints on Constitutional Review in the Supreme Court of Canada

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Authors: Brendan Dell, Paul J. Gardner, Geoffrey Thomas Sigalet
Cited by: 0
References: 56

Abstract

Abstract Since the adoption of the Charter, scholars have argued that Parliament defers to the Supreme Court of Canada (SCC) on questions of constitutional law. This is surprising given Canada’s previous history of parliamentary supremacy, Parliament’s enforcement of Court decisions and cognate findings internationally that show how elected officials can constrain high courts. Accordingly, we develop a theory of how Parliament influences the constitutional decision-making of the Supreme Court. Specifically, we argue that the Supreme Court will be less likely to grant leave to appeal in cases where it might disagree with Parliament to avoid any policy costs associated with that disagreement. Using a dataset of statutes reviewable between 1968 and 2020, we find that judicial review is less likely when the SCC faces a counterpartisan Parliament, and that judicial review increases under copartisan Parliaments when Parliament is less likely to oppose Court decisions.

Fields of Study & Subjects

Judicial and Constitutional Studies Comparative constitutional jurisprudence studies American Constitutional Law and Politics

Publication details

Journal / source
Canadian Journal of Political Science
Volume
59
Issue
3
Pages
712–735
Publication date
10 February 2026
Language
EN