Judicial activism in Canada

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Judicial activism is said to be the overreaching or incorrect interpretation of the law, which is thought by critics to be a misuse of the power of interpretation of the law by a judge or judges for political or personal reasons.^{[according to whom?]}

Overview[]

Judges in Canada are given the power to interpret law passed down from the legislature, discretionary power to resolve disputes, and the power to use common law and accepted judicial policy to render judgement. By the principle of separation of powers, a strong tradition in Canada and accepted practice, judges should respect the role of the legislature to create law.^{[according to whom?]} Judges are also charged to impartially apply the law as it is written.^{[citation needed]}

Canada has a legal system that is derived from the British system of common law (and the French system in the province of Quebec). Canadian Courts have a structure that relies more heavily on the discretion of its judges, policy and common law to create a workable body of law.^{[citation needed]} Thus Canada's legal system may have more potential for conflicts with regards to the accusation of judicial activism, as compared to the United States.^{[neutrality is disputed]}

Former Chief Justice of the Supreme Court of Canada Beverley McLachlin has stated that:

the charge of judicial activism may be understood as saying that judges are pursuing a particular political agenda, that they are allowing their political views to determine the outcome of cases before them. ... It is a serious matter to suggest that any branch of government is deliberately acting in a manner that is inconsistent with its constitutional role.[1]

Such accusations often arise in response to rulings involving the Canadian Charter of Rights and Freedoms.^{[weasel words]} Specifically, rulings that have favoured the extension of gay rights, have prompted accusations of judicial activism.^{[weasel words]} Justice Rosalie Abella is a particularly common target of those who perceive activism on the Supreme Court of Canada bench.^{[weasel words]}

The recent judgment Chaoulli v Quebec [2005] 1 R.C.S. which declared unconstitutional the prohibition of private healthcare insurance, and challenged the principle of Canadian universal health care in Quebec was deemed by many as a prominent example of judicial activism.^{[weasel words]} The judgment was written by Justice Deschamps with a tight majority of 4 against 3.

Popular books[]

• James B. Kelly, July 30, 2006. Governing With the Charter: Legislative And Judicial Activism And Framer's Intent (Law and Society Series) (UBC Press Publishers), 336pp. ISBN 0-7748-1212-5
• , May 2006. Against Judicial Activism: The Decline of Freedom And Democracy in Canada (McGill-Queen's University Press Publishers), 310pp. ISBN 0-7735-3054-1
• C. Gwendolyn Landolt LLB, Patrick Redmond PHD, Douglas A Alderson MA LLM, 25 July 2019, From Democracy to Judicial Dictatorship in Canada:: The Untold Story of the Charter of Rights, (Interim Publishing Company) 336 p. ISBN 978-1082424311