To analyze the role of the courts, it is first important to look at the two possible functional models as outlined by Paul Weiler. The first model is the "adjudication of disputes" model, where the courts’ primary role is interpreting law for cases with a direct dispute. The role of the courts is limited and there is a clear separation between the legislative process and the judicial process. The adjudication of disputes model can be seen in the courts prior to 1982 and the Charter of Rights and Freedoms. The courts performed judicial review on jurisdictional cases between the federal and provincial governments and also handled criminal cases and appeals. In the latter, the courts’ decisions reflect an interpretivist approach where the original framer’s intent of the law is yielded to. The second model of the courts is the "policy-making" model where the courts’ role has entered the political sphere and the courts are now performing law-making roles, originally held only by the legislature. There is essentially no difference between judges and legislators. Following the creation of the Constitution Act of 1982 and the entrenched Charter of Rights and Freedoms, the courts began performing a judicial activist, non-interpretivist role, where judges move to broaden law and expand citizens’ rights. The courts’ role has shifted from the adjudication of disputes model to the policy-making model in which they now exercise the power to nullify legislation and politicize their role. Do the courts have the legitimacy to perform such a role and has this undermined parliamentary supremacy?

Prior to the creation of the Charter in 1982, the courts performed judicial review of the division of powers between Ottawa and the provinces, but did not act as a law-making body. Based on the adjudication of disputes model of judging, which was adopted from Britain, a judge’s role is to interpret law and find meaning behind it. In such a system, the power of the courts can only be exercised if there is a direct dispute. Parliamentary supremacy is one of the founding principles of Canadian politics and places the power to make laws in the hands of the representative legislature and not appointed judges. The courts are merely an instrument for dispute settling. Both the Judicial Committee of the Privy Council (JCPC), until 1949, and the Supreme Court of Canada, after 1949, acted as the arbitrator in federal jurisdictional disputes, providing constitutional interpretations. In these types of disputes, the courts only interpreted existing law, thus not creating new laws. Courts do, however, limit the law-making power of different levels of government by deciding such cases. The JCPC decentralized Canada’s federal system by ruling in favor of the provincial governments in most cases put before it. The Fathers of Confederation intended to strictly follow parliamentary supremacy and felt the courts’ decisions should only be advisory on the federal government, yet binding on the provincial governments. Common practice became that both levels of government adhered to the decisions of the courts.

In addition to deciding division of power disputes, the Supreme Court and the JCPC acted as the final appeals court in Canada as superior courts. Appeals could be made to the superior court on cases that were first heard by a lower court. From 1867 to 1982, the courts’ decisions were primarily based on the law of precedent, providing stare decisis, that "like cases be decided alike." Decisions from the courts become common law, following the British tradition. It is important to note that common law is not written and therefore not constitutionally entrenched. The constitution is the supreme law of the land and has precedence over common law. Until 1982, the Supreme Court was not constitutionally entrenched and parliament could abolish it at any time. In addition, the Constitution Act of 1867 did not spell out the roles of a superior court, therefore limiting its power. In 1960, parliament introduced the Canadian Bill of Rights to help unify Canada. The Bill of Rights was a federal statute, which sought to protect the rights and freedoms of Canadians. Because the Bill of Rights was only a statute and was not constitutionally entrenched, it applied only at the federal level. It was also not entirely clear how it would override federal statutes. Under the Bill of Rights, the role of the courts was not spelled out, leaving only one federal statute ever nullified under it in 22 years. The Bill of Rights was a step in the right direction because prior to it, Canadians’ rights and liberties were only protected by the "rule of law" and an implied bill of rights. According to the "rule of law," all people are considered equal under the law, including parliament. The implied bill of rights can be found in the preamble of the Constitution Act of 1867, but it was not judicially enforceable because of its implied nature. Before 1982, judges tended to follow judicial self-restraint, adhering to the original framer’s intent of the law and not moving to broaden its scope.

In the 1928 "Persons" Case, Lord Sankey of the JCPC defined what he felt the role of the courts should be. The question at hand was whether or not "persons" in the Constitution Act of 1867 referred to women, as well as men. This would decide whether or not women could be appointed to the Canadian Senate. The original framers of the constitution lived in a time were social conditions were different and women were considered to have fewer rights than men. The JCPC ruled that women were to be included as "persons" and could thus obtain a seat in the Senate. Sankey based this decision on the "Living Tree Approach" to judicial review. According to Sankey, "…The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits…Like all written constitutions it has been subject to development through usage and convention." This implies that indeed the courts are important in interpreting and developing laws for a changing society; no new law is made because existing law is simply adapted for change.

In 1976, the Supreme Court of Canada ruled in Harrison v. Carswell that the role of the courts is to adhere to precedence and to leave creativity to the legislatures. The conflict in the case was over the right to private property and the right to strike. Chief Justice Boris Laskin wrote, "If there is to be any change in this statute [The Petty Trespasses Act]…it would seem to me that such a change must be made by the enacting institution, the Legislature, which is representative of the people and designed to manifest the political will, and not by the Court." In this case, the Supreme Court clearly showed its view that Canadians are represented by the legislature and such an issue is to be decided in the political realm and not the judiciary.

With a growing separatist movement in Quebec in the 1970’s, Prime Minister Pierre Trudeau hoped to build nationalism by patriating the constitution and including an entrenched bill of rights. In 1982, Trudeau was successful and the Charter of Rights and Freedoms was entrenched in the Constitution Act of 1982. The Charter spells out the basic rights and freedoms of Canadians and has granted the courts new responsibilities by explicitly stating the courts’ role of judicial review. Since the Charter is entrenched in the constitution, federal and provincial laws may not violate it. The first few years of the Charter’s existence were very important in determining the role the courts would play and how they would interpret each section of the Charter. The question on most politicians’ minds was whether the courts would exercise their newly stated power. The first case brought before the Supreme Court set the precedent for future Charter cases when Justice Estey declared that Lord Sankey’s living tree doctrine implied a "large and liberal interpretation of the Charter." Chief Justice Brian Dickson and the Supreme Court continued a trend of judicial activism set by Estey when they decided the 1988 Morgentaler abortion case. Henry Morgentaler had been charged for performing illegal abortions under section 251 of the Criminal Code. "Section 251 of the Criminal Code still treated abortion as a serious crime punishable by a maximum sentence of life imprisonment for the abortionist and two years for the woman." The Supreme Court ruled that section 251 violated section 7 of the Charter, which gives Canadians the right to freedom of the person and arguably allows women to choose if they want an abortion. As a result of the decision, section 251 was nullified. From 1982 to 1997, the Supreme Court saw a total of 344 Charter cases and nullified 55 statutes.

The role of the courts has clearly changed since the introduction of the Charter. To declare if a law should be nullified, the Supreme Court uses a systematic and impartial approach that helps to legitimize any decisions it reaches. If a law clearly violates a Charter right, the court first scrutinizes the existing law to see if there is a pressing and substantive reason for it in society. Furthermore, "the law cannot be arbitrary, unfair, or based on irrational considerations," and "should impair, as little as possible, the right or freedom in question." If these conditions are not met by the law in question, the courts may declare it invalid. Nine federally appointed judges with legal and professional training now have the power to determine the validity of a law, a role that was previously left to parliament. Many argue that Supreme Court judges are not trained to make quality public policy decisions. It can now be questioned, which is more important in Canada, constitutional supremacy or parliamentary supremacy? "The constitution is supreme and it is the role of the judiciary to ensure that it remains so." When courts decide constitutional cases they are altering the laws which were previously left in the political arena. This violates Canada’s founding principles of parliamentary supremacy where the legislature creates laws for the people and not the courts. The Charter has fundamentally politicized the courts. It can be argued also that the courts’ independence from the electorate allows them to enforce minority rights and civil liberties which parliament may not have been able to do because of majority pressures.

In certain instances, a court’s decision can fall upon partisanship and judicial interpretations can be based on opinion and not expertise. Judges must carefully weigh the law and not allow personal biases to interfere. This can be subjective at times because judges are unelected and therefore unaccountable for their actions. Supreme Court justices are appointed by the Cabinet on the advice of the Minister of Justice, except for the chief justice who is appointed by the Prime Minister. Judges are appointed for life or until they retire and it is common practice for them to have at least ten years standing with a bar association of a province or territory. It is convention for the position of chief justice to alter between francophone and anglophone judges. Furthermore, the Supreme Court provides regional representation by having at least 3 justices from Quebec, 3 from Ontario, 2 from the western provinces, and 1 from the Maritimes. Although there are regional and linguistic conventions for positions, judicial selection takes place behind closed doors and can be open to criticism because of partisanship. Before his resignation as Prime Minister in 1984, Pierre Trudeau appointed 3 of his former cabinet ministers to the federal court. To alleviate some dissatisfaction over such appointments, in 1988, the Commission for Federal Judicial Affairs was introduced to aid the Minister of Justice in selecting candidates for judicial appointments. Further methods for selection may still be needed to help hold the courts accountable and legitimize their role.

There was an attempt to preserve parliamentary supremacy in the Charter by adding a judicial override clause. To agree to a new constitution with an entrenched Charter, the provinces called for such a clause that would bring power back to the legislature. Inserted into section 33 of the Charter is the "notwithstanding clause," whereby a legislature or province can enact a law that will operate notwithstanding a Charter right from section 2 or sections 7 to 15. The notwithstanding clause allows parliaments to legislate more freely and come out from under the strict reigns of the Charter. Unfortunately, Quebec has been one of the few provinces to ever invoke this clause. Many provincial legislatures fear there would be public outcry that they are infringing on the rights of Canadians if they invoke the clause. However, the lack of legitimacy the courts face could be retained with a more liberal use of this clause. The powerful section 33 override to retain parliamentary supremacy remains essentially powerless.

With a shift in the courts’ role, the political focus now encompasses both the legislature and the courts. The courts are now making more decisions on constitutional issues than ever before and most constitutional cases involve a political component because a policy change can arise from a court’s decision. Section 33 of the Charter has turned Charter litigation by the courts into, essentially a political battleground for the legislatures. Courts have always broadened or narrowed the scope of laws in creating precedents, but not until the Charter did the courts have the power to nullify legislation and, therefore, create law. After seeing the courts move from judicial self-restraint to judicial activism, the question arises as to whether or not the courts have the legitimacy to perform a law-making role. The courts are appointed bodies and hold little or no accountability for their actions. To continue in the traditions of parliamentary supremacy, it is crucial that something be done to legitimize the courts’ new power and also ensure that Canadians turn to parliament and not the courts to solve political issues.