The Instability Associated with Shifting Away from the Intended Weak-Form Judicial Review of the Charter

The use of non-constitutional reversal is not understood by Mark Tushnet to be within the rights of parliament. The evidence in R. v. Seaboyer (1991) is in regards to the rape-shield provisions in the Constitution. The majority judgment (7-2) concerned that Parliament had struck an improper balance between the rights of the accused and victims' rights by the exclusion of relevant sexual history under section 276. Justice McLachlin offered an understanding for guidelines expected out of the legislative rebuttal: "[the guidelines] should be seen for what they are – an attempt to describe the consequences of the application of the general rules of evidence governing relevance and the reception of evidence – and not judicial legislation cast in stone" (Seaboyer, 71). The following year, Bill C-49 was enacted and disagreed strongly with the majority decision as it was strongly pronounced in the preamble. The legislative preamble strikes unequivocally at the interpretation of the Supreme Court of Canada by suggesting that they had not struck the right balance between the victim and the accused. This demonstrates the commitment of the Court to the principle of dialogue theory, but cannot afford to contradict the position of the Minster of Justice because the legitimacy of the Court itself resides in the Cabinet's continued reliance on it for limitations. However, the balance was suppose to be maintained and not shifted to the office of the Minster of Justice for the legitimacy of the Court, the Charter was supposed to be the objective legitimacy of the Court, which would then give stability to Parliament. The shift from a stable balance in weak-form judicial review where the Court manages the limitations of the legislators to a system whereby the legitimacy of the Court's ruling is dependent on the political compliance of the legislators. The shift changes the balance of power initially entrenched in the Charter, therefore, without Charter compliance the foundations of the system is affected more severely by political winds, thus increasing instability.

The importance placed on the decisions of the Supreme Court of Canada has become paramount after the entrenchment of the Canadian Charter of Rights and Freedoms in 1982. The idea of using the Charter to centralize rights-based review through a singular federal body would produce greater national unity and minimize provincial involvement in the process of balancing minority groups' interests. Following the act of unilateral patriation, the Charter returned to the idea, from the proposal formulated at the First Ministers Conference, to something more substantial that resembled more the people's package that was promised. The social groups that formulated into special interest's groups lobbied the Special Joint Committee, which generated popular support for the proposal; not through the inclusion of their demands, but by the transparency and ideology demonstrated

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