The Paradox of Judicial Deference

Abstract

This article analyses the Canadian constitutional case-law in which the Supreme Court uses the doctrine of deference, and considers the justifications for this doctrine. The two main justifications that have been advanced for deference concern the judiciary's alleged institutional incompetence and the lack of democratic legitimacy. I argue that none of these arguments can explain the doctrine of deference as developed and used by the Supreme Court of Canada. It will be shown that courts are perfectly capable of making decisions on constitutional questions. And as for democratic legitimacy arguments - which are based on the fear of subjective reasoning - they are seriously undermined by the indeterminate and subjective application of the doctrine. In fact, it will be shown that deference only adds subjectivity to the analysis. This is what I will call the paradox of judicial deference. It will further be argued that a relaxed level of constitutional review is indeed justified only when the risk of a judicial mistake is too high for us as a society to take. And in such cases, rather than using the vague concept of deference, a relaxed but explicit test must be developed.

Keywords: constitutional law, charter, section 1, limitation clause, deference, margin of appreciation, institutional competence, democratic legitimacy