Has the Charter Shifted the Power to Judiciary at the Expense of the Legislative Branch?

Has the charter shifted the power to judiciary at the expense of the legislative branch?

The Canadian Charter of Rights and Freedoms has had a signnifcant impact on Canadian politics. It bestows judges with the power to reject laws that have been made by the elected representatives of the people. Some maintain the view that the Charter has expanded the rights and liberties of citizens, as well as the power of judges, at the expense of the legislative branch, and for this reason, it has changed the manner in which we conduct politics. On the other hand, some argue that the Charter has not given courts unlimited power over legislatures. The Charter of Rights is understood in such broad, vague language that gives judges a great deal of discretion in applying its provisions to laws that come before them.
The judicial review is legitimate in a democratic society because of our commitment to the rule of law. All of the insititutions in our society must abide by the rule of law, and judicial review requires obedience by the legislative bodies to the law of Constitution. Judges are given the power to maintain or reject laws that they consider contradictory of the Charter. Additionally, a strong, independent judiciary is essential to the functioning of a democracy. Firstly, the statutes passed by the elected representatives are open to interpretation by the courts. Secondly, the judiciary adjudicates the disputes between the federal and provincial government, since they would be neutral in the situation. Lastly, the courts play a critical role in determining whether government actions are respectful of the rights of freedom and equality. However, this power given to the judiciary has created some concerns. For example, judges are appointed by the federal government in a closed process because of their training, they are not appointed because of any particular expertise. Therefore, some skeptics believe that judges are not competent. Also, there is a problem with their lack of accountability and the question of judicial bias. Judges are more engaged with policies now, that their accountability becomes more critical, and a concern for their bias increases. On the other hand, there is the view that the Charter has not shifted the power to judiciary at the expense of the legislative branch. For example, a decision made by the judiciary is open to reversal, modification or avoidance by the government. Thus, the government is able to decide to re-enact an old law, enact a new law, or abandon a law.
There are a couple of factors that suggest that a legislative body is rarely disabled by a judicial decision. The first is section 33 in the Charter, under which a legislature can insert a notwithstanding clause into a statute, and therefore release the statute from most of the provisions of the Charter, including the guaranteed rights of freedom of expression and equality. Section 33 is the most powerful tool that legislatures are able to use to overcome a Charter decision that they do not accept. The second is that a legislature is free to enact a law that violates one of the rights, provided the law is a reasonable limit on the right. Legal decisions cannot be considered the final pronouncements on issues. Courts must interpret the law as it stands, but if the government does not like judicial decisions, they can change the law or change the Constituion.
As a result, to some extent the Charter has shifted the power to judiciary, but not at the expense of the legislative branch. Most of the decisions by the courts, in which laws that have been rejected for violating a Charter right, have resulted in the enactment of a new law by the legislature. Occasionally, the Court rejects statutes enacted by elected, accountable, representative legislative bodies. However, the decisions of the Court almost always leave room for a legislative response. Ultimately, the courts are given some power, but are not given unlimited power over legislatures.