Preface

• Author: Kent Roach
• Pages: 9-10

Preface

IX

The

recent personalization

of the

judicial activism debate

in

Canada

and

its

focus

on the

role

of the

so-called Court Party

of law

professors,

law

clerks

to the

Court,

and

interest groups that appear

as

intervenors

before

the

Supreme

Court1

make

it

necessary

for me to

respond

to

those

who

may

attempt

to

discredit

this

book

on the

basis

of my

previous

experience.

As a

former clerk

to

Justice

Bertha Wilson,

I

might

be

thought

by

some

to be an

apologist

for the

work

of the

Court

and for its

decisions that

are

associated with judicial activism.

I am

indeed sympa-

thetic

to

many

of the

Court's interventions

on

behalf

of

unpopular

minorities

and the

accused,

but not

because

I

believe that

the

Court

has

a

monopoly

on

wisdom

or

should always have

the

final

word.

Rather,

I

believe

that democracy

is

improved when

we are

forced

to

consider

the

effects

of our

actions

on the

unpopular

and the

disadvantaged

and

that

an

independent

and

courageous judiciary

is the

best institution

we

have

to

remind

us of

those concerns.

Any

fears

that

I

will

be too

soft

on the

Court

should

be

rebutted

by the

fact

that,

as a law

professor,

I

earn

my

livelihood

by

criticizing

the

Court both

in the

classroom

and in the law

reviews.

One of the

reasons

for

writing

this

book

is my

concern that

the

Court

may pay too

much attention

to the

critics

of

judicial activism

and

may

become

too

deferential

in its

work. This restraint would deprive

Canadians

of the

checks

and

balances produced

by

having both

a

strong

Court

and a

strong Parliament

and a

more self-aware

and

self-critical

democracy.

My

pro

bono

work

as

counsel

for a

number

of

Aboriginal

and

civil

liberties groups

who

appear

as

intervenors

before

the

Court should

not

disqualify

me

from

contributing

to the

debate.2

Those

who

represent

groups

before

the

Court

are in a

good position

to

understand

why

these

people

go to the

Court

and the

difficulties

they

face.

Such groups

often

fail

to

persuade

the

Court

to see

matters

their

way. They also under-

stand that occasional hard-won judicial victories

can

turn into legislative

or

administrative

defeats.

I do not

doubt

that

my

prior

experiences

influ-

ence

the

views expressed

in the

book,

but ask

only that they

be

consid-

ered

and

judged

on

their

own

merits

and not

dismissed

out of

hand

on

an ad

hominem

basis.

I

write

this

book

not as a

former

clerk

or a

person

who

occasion-

ally represents intervenors

before

the

Court,

but as an

academic inter-