The New Parliamentary Sovereignty

Is parliamentary sovereignty still a useful concept in the post-Charter era? Once a central principle of Canadian constitutional law, parliamentary sovereignty has come to be viewed by many as being of little more than historical interest. It is perhaps not surprising, then, that the doctrine has received relatively little scholarly attention since the enactment of the Charter. But while it is undoubtedly true that the more absolute versions of parliamentary sovereignty did not survive the Charter’s entrenchment, we should not be too quick to dismiss the principle’s relevance entirely. In this paper I suggest that some variant of parliamentary sovereignty continues to subsist in Canadian constitutional law. I also suggest that the study of parliamentary sovereignty reveals an important connection between the intensity of judicial review and the degree to which Parliament focussed on the constitutional issues raised by a law during the legislative process. Parliament can expand its sphere of autonomous decision-making power relative to courts by showing that it is proactive about securing and promoting constitutional rights.