Judicial Activism and Democratic Dialogue

AuthorKent Roach
chapter fifteen
Judicial Activism and Democratic
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

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