Through which glass darkly? Constitutional principle in legality and constitutionality review

Abstract

In recent years, the Supreme Courts of Canada and the United Kingdom have decided very similar cases on the permissibility of high fees for access to adjudication. The outcomes of the cases were similar: the fees were struck down. In the Canadian case, they were held to infringe s 96 of the Constitution Act, 1867; in the United Kingdom, they were said to be a violation of the common law right of access to courts not authorized by statute. Yet a comparison of the reasoning of the two supreme courts is instructive. While the UK Supreme Court forthrightly and thoughtfully engaged with the impact of the fees at issue on the Rule of Law, the Canadian one failed to do so and instead relied on a strained interpretation of a constitutional provision of questionable relevance. This suggests that, perhaps surprisingly, legality review, being less bound up with constitutional text and causing courts less anxiety about its legitimacy, can allow the courts better to canvass the real issues cases implicating constitutional rights and principles present than constitutionality review.