Judicial Activism and Democratic Dialogue
| Author | Kent Roach |
| Pages | 289-296 |
289
15
Judicial
Activism
and
Democratic
Dialogue
If
the
Charter
is not
very
different
from
the
common
law and if
Canadian
legislatures
can
generally have
the
last word under
the
Charter
in a
dem-
ocratic dialogue with
the
Court,
why has
there
been
so
much
fuss
about
judicial activism?
Why
have Canadians
on
both ends
of the
political
spectrum
been
so
concerned that
the
Court
will create rights
and
thwart
the
democratic wishes
of
governments
and the
people?
One
reason
is the
large shadow cast
by the
American experience
of
judicial review
and the
endless
American debate about judicial
activism,
as
discussed
in
chapter
2.
Most
writing about judicial activism
is
based
on the
American
Bill
of
Rights.
This
focus
is
understandable
—
the
Americans have
the
most experience with
a
bill
of
rights
enforced
by a
Supreme
Court.
It is,
however,
unfortunate
because
the
American
experience with judicial review
is
unique
and
even idiosyncratic, given
the
absence
of any
explicit clause
in the
1791
Bill
of
Rights
that allows
government either
to
limit
or to
override rights
as
they have been inter-
preted
by the
Supreme
Court.
Most
post-Second
World
War
bills
of
rights, including
the
1950
and the
1966
International
Covenant
on
Civil
and
Political
Rights,
contemplate that
some rights
can be
limited
by
ordinary legislation
for
important
objec-
tives
and
that
there
can be
derogations
from
certain
rights
in
some situ-
ations.
The
1982
Canadian
Charter
of
Rights
and
Freedoms
extended
these features
of
modern bills
of
rights
by
providing,
in
section
1,
a
gen-
eral clause that allows legislatures
to
justify
reasonable limits
on all
rights
and,
in
section
33,
that legislatures could enact legislation
notwithstanding
certain
Charter
rights
for a
renewable
five-year
period.
These
key
provisions anticipated concerns about judicial activism
by
allowing legislatures
to
respond
to
bills
of
rights' decisions with ordinary
legislation without,
as so
often
must occur
in the
United States, having
to
change
the
constitution
or the
Court.
The
Charter's
response
to
concerns about judicial activism has,
as
discussed
in
chapter
4,
influenced
the
development
of
subsequent bills
of
rights
in New
Zealand, Israel, South
Africa,
and the
United Kingdom.
One of the
main arguments
of
this book
has
been that there
is a
funda-
mental
difference
between
the
Canadian Charter
and
other similar mod-
ern
bills
of
rights
and the
American
Bill
of
Rights.
The
ability
of
Canadian
legislatures
to
justify
limits
on
Charter
rights
and
even
over-
Chapter
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