Judicial Activism and Democratic Dialogue

• Author: Kent Roach
• Pages: 325-333

325

chapter fifteen

Judicial Activism and Democratic

Dialogue

If the charter is not very different from the common law and if Can-

adian legislatures can generally have the last word under the Chart er

in a democratic dialogue with the Cour t, 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 ac-

tivism, as discussed in chapter 2. Most writing about judicial activism

is based on the American Bill of Rights. This focus is understand-

able — 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 idiosyn-

cratic, 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 interpreted by the Supreme Court. Most post-Second World

War bills of rights, including the 1950 European Conventionon Human

Rights and the 1966 International Covenant on Civil and Political Rights,

contemplate that some rights can be limited by ordinary legislation

for important objectives and that there can be derogations from cer-

tain rights in some situations. The 1982 Canadian Chart er of Rights and

Freedoms extended these features of modern bills of rig hts by providing,

in section 1, a general clause that allows legislatures to justify reason-

able limits on all rights and, in section 33, that legislatures could enact