Parliamentary Constraints on Constitutional Review in the Supreme Court of Canada

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.