Judicial activism in Canada

Résumé du document

In 1982, Canada has known a very significant shift with the adoption of the Charter of Right of Freedom. Before this date, Canada only had a Bill of Rights (1960's) which was a statute and did not allow the courts to restrict the action of the Parliament. But the 1982 Charter of Rights and Freedom has led to a rights revolution and Canada has become a "jurisdocracy" (expression of Hirschl). Courts now have the opportunity to interpret the Constitution and to strike down some laws, if they consider that these laws do not respect people's rights. This could be seen as a progress but in fact, this has triggered off a lot of criticisms. As a matter of fact, Canadian courts do not hesitate to use their power a lot and this activism is sometimes considered as a threat. No one can deny that very important issues such as gay rights or euthanasia are now in the hands of unelected judges. Is this really their role? Some argue that courts in Canada are too activist and are usurping the powers of elected legislatures. So we can wonder, to what extent court activism is a threat to Canadian democracy?

Extraits

[...] One of the most recent examples of judicial activism is the decision Chaoulli v. Quebec (2005); it questions the principle of universal health care in Quebec, which is a pillar of the Canadian social system, by declaring that the prohibition of private healthcare insurance is unconstitutional. The fact that these major public policies are in the hands of judges shows shift from a system of parliamentary supremacy to one of constitutional supremacy”[10]. It clearly highlights the loss of power for the legislative branch of government. [...]

[...] That is why some think that it is indispensable to put an end to judicial activism, in order to “secure freedom under law in Canada”[28]. To conclude, judicial activism is a very sensible aspect of the Canadian system. On the one hand, it is considered as a threat to democracy because unelected judges do not hesitate to make very important decisions. Only nine people, without the appropriate training or the legitimacy, are responsible for grand issues such as gay rights, abortion or euthanasia. They are also entitled to give orders to the legislator and it has an impact on public spending. [...]

[...] Few judges have any training in economics or public administration. Most judges have no experience in crafting the political compromises that are often necessary to mobilize popular support for effective public policies”[14]. The election gives legitimacy to the legislator so that he can make law. But the judge who re-interprets the law was not chosen by the citizen so he does not have this legitimacy. Judges should respect the legislative branch and apply the law impartially. Indeed, the expression judicial activism can mean three different things: to strike down laws as unconstitutional, to overturn judicial precedent or to rule against the most common interpretation of the Constitution. [...]

[...] even if a bill on the subject was defeated in Parliament. For Leishman, Supreme Court of Canada has paid no heed to this clear and deliberate expression of the will of the majority of the elected representatives of the people”[4]. Indeed, the Canadian Parliament clearly renounced to refer to sexual orientation in the Charter. It was known that this interpretation was not the one wanted by the legislator but the Supreme Court did not pay attention to this fact. But what it worst is that the legislative was forced by the court to pass the bill. [...]

[...] Rory Leishman, Against Judicial Activism: the Decline of Freedom and Democracy in Canada. Mac Gill-Queen's University Press Page 135. Edward Mac Bride Chief Justice shocks Canada, the role of opinion polls Judicial Activism: a threat to democracy and religion, Alphonse de Valk Page 36. Rory Leishman, Against Judicial Activism: the Decline of Freedom and Democracy in Canada. Mac Gill-Queen's University Press Page 15. Rory Leishman, Against Judicial Activism: the Decline of Freedom and Democracy in Canada. Mac Gill-Queen's University Press Page 135. [...]