Two Tiers of Judicial Review? An Empirical Analysis of the Supreme Court of Canada

Deference by courts to democratically elected legislature is at the heart of our constitutional democracy. This paper constructs a novel database of 249 cases involving the judicial review of legislation in Canada from the inception of the Charter to present. Deference increased sharply as the Charter was introduced, but has been steadily decreasing since 2000 after the McLachlin and Wagner courts. Deference is rising for the right to free expression, but declining for penal statutes and the right to equality. The recent fall in judicial deference can largely be attributed to certain Liberal appointees striking down more penal statutes due to both construing criminal rights more broadly and, as predicted by Irwin Toy , finding that the least intrusive means have not been taken. The justice-level data also provide insights on differences (or lack thereof) in judicial behaviour across sex and politics. One could conclude that Canada does, in fact, have de facto tiered judicial review.