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?
[...] For example, the Supreme Court of Canada really have a mandate to impose two tiered medicare on the people of Canada under Section Some writers have a very extreme opinion on the subject; Ian Hunter argues that “Canada's Charter of Rights has forever altered the system of government in Canada: it has led to judicial activism and an emasculated Parliament, and has set Canada on the road to totalitarianism”[26]. Edward Mac Bride describes this phenomenon as the consequence of a “rampant individualism that has gone from rights-consciousness to rights- obsession”[27]. [...]
[...] There are several examples of sensible courts decisions; “time and again over the past 20 years, unelected judges on this Court have issued guidelines on legislative policy to the democratically elected representatives of the people of Canada in what is supposed to be the legislative branch of government”[2]. One of the big fields of debate concerns gay rights. In the Vriend case, the court has granted spousal benefits to same sex couples. Obviously, court read a right into two different enactments directly contrary to the wishes of the legislatures that passed them”[3]. [...]
[...] What is more, the judges are not the only ones to be responsible for the interpretation of the Charter, so are the Cabinet and the bureaucracy. According to him, “judicial activism coexists with legislative activism and bureaucratic activism in the modern Canadian democratic system”[22]. So, judicial activism is seen as a benefic process that allows Canada to evolve and to be a modern country. It prevents her from keeping old rules because of a passive legislative branch. No one can deny this kind of arguments, but from a pure theoretical stand point, the place of judicial activism in a democracy is really questionable. [...]
[...] Nevertheless, the main problem in judicial activism is the question of legitimacy. It is often considered as a usurpation of the legislative power. It seems that this intervention of the judiciary does not respect the separation of powers, which is a fundamental principle of democracy. Canada has three branches of government (executive, legislative and judiciary) that have precise functions; they are not supposed to mix them. The judicial branch has its own powers and must leave the legislative powers to the Parliament. [...]
[...] Rory Leishman, Against Judicial Activism : the Decline of Freedom and Democracy in Canada. Mac Gill-Queen's University Press Page 7. Rory Leishman, Against Judicial Activism: the Decline of Freedom and Democracy in Canada. Mac Gill-Queen's University Press Page 8. Sir F. Bacon, Of Judicature, Essays Rory Leishman, Against Judicial Activism: the Decline of Freedom and Democracy in Canada. Mac Gill-Queen's University Press Page 151. Rory Leishman, Against Judicial Activism: the Decline of Freedom and Democracy in Canada. Mac Gill-Queen's University Press Page 135. [...]
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