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Law General

Judicial Review of Legislation in Canada

by (author) Barry L. Strayer

University of Toronto Press
Initial publish date
Apr 2019
General, Research, General
  • eBook

    Publish Date
    Apr 2019
    List Price

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This book is a systematic study of constitutional legislation in Canada in relation to constitutional development. In deciding whether legislation in the Canadian courts is constitutionally valid or invalid, the author discusses the history, theory, special problems, and rules relating to the function of the courts. He believes that our courts have never clearly enunciated the constitutional basis of their right to review legislation for validity, nor have the permissible limitations on the right been analysed. Thus the rôle of the courts in the operation of the constitution has rarely been articulated.
The author's thesis is that constitutional change by amendment is not an effective means of keeping the constituion abreast of developments, and that this function should be taken over by the courts. Based on an analysis of the results of past judicial review this study urges reassessment and change to provide more functional constitutional jurisprudence: it suggests a general liberalization of rules permitting citizens to raise constitutional issues before the courts, a liberalization of rules of evidence so that courts may be adequately informed as to the social and economic contexts of legislation, and a critical reassessment of earlier decisions rather than a strict adherence to prevedent in all cases. In its appeal for a more modern and suitable constitutional jurisprudence this book calls for some radical changes and should encourage the legal profession and the judiciary to re-examine the foundation of existing law and its relation to the present social and political structure of Canada.

About the author

BARRY L. STRAYER received his B.A. and LL.B. from the University of Saskatchewan and attended Oxford for his Bachelor of Civil Law degree. After a year as an instructor in law at the University of Saskatchewan he joined the Department of the Attorney General of Saskatchewan where he had occasion to advise on a variety of constitutional problems. He has also acted as a consultant to the government of Saskatchewan on various constitutional matters, and was appointed in 1967 by the Honourable P.E. Trudeau as an adviser to Mr. H. Carl Goldenberg, Q.C., his Spcial Counsel on the Constitution. In 1966 he received his Doctor of Juridical Science from Harvard University, and is, at present, Professor Law at the University of Saskatchewan.

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