The Rule of the Courts

M. Akram Faizer

government headed by Prime Minister Brian Mulroney sufficient political cover to liberalize the country’s abortion laws by aligning the interests of pro-Charter Canadians with pro choice liberals. The conjunction of judicial review with legislative input facilitated the depoliticization of abortion as an issue in Canadian politics. With respect to Ontario’s anti-strike Bill 28, the reaction was to transform a work stoppage into a political strike over Bill 28 itself that forced the closure of schools throughout the province that most Ontarians blamed on the Ontario government headed by Premier Doug Ford. 225 After other unions pledged their solidarity, leading to increas ingly credible calls for a general strike, Ford’s government took twenty minutes to unanimously repeal the legislation, which it “deemed for all purposes never to have been in force.” 226 With respect to the second check, namely the NWC’s automatic sunset at five years, the HLR argues that it puts the burden on legislatures to justify overrides every five years and provides the public with continuing opportunity to assess their representatives’ use of the NWC. 227 This perhaps explains why none of the uses of the NWC outside of Quebec were renewed. 228 The third check, judicial review, provides both direct and indirect checks. Indirectly, an intervening judicial decision explaining how a law infringes on people’s constitutional rights can make it politically costly for the legislature to maintain the law. 229 For example, in 1988 the Supreme Court concluded a Quebec law requiring all “signs and posters and commercial advertising” to be exclusively French violated the Charter’s guarantee of freedom of expression. 230 In response, Quebec’s National Assembly invoked the NWC to enact not the same legislation, but a tempered version that limited the French-only requirement to exterior signs. 231

225 The Constrained Override, supra note 189 at 1733. 226 The Constrained Override, supra note 189 at 1734.

227 Id. 228 Id. 229 Id. 230 Id. citing Ford v. Quebec (Att’y Gen.), [1988] 2 S.C.R. 712, 746 (Can.).

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