The Myths of Judicial Activism

• Author: Kent Roach
• Pages: 233-251

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chapter eleven

The Myths of Judicial Activism

The extent of judicial activism in Canada under the Charter has

been examined in the last four chapters. My overall conclusion is

that critics of judicial activism on both t he left and the right have over-

estimated the extent to which judges have been able to read their own

preferences into law, to avoid the constraints of deciding issues as a

court as opposed to a legislature, to maximize rights w ithout regard to

competing social values, and to have the last word. The accusation of

judicial activism is not only inaccurate but unhelpful. The label “judi-

cial activism” obscures more than it illuminates and allows commen-

tators to criticize the Court and the Ch arter without really explaining

their reasons for doing so. It hints at, if not judicial impropriety, at least

judicial overreaching, while hiding controversial assumptions about

judging, rights, and democracy. We need to move beyond loaded labels

and American-style debates about judicial activism to more complex

discussions about the role of judges, courts, and legislatures in a dem-

ocracy. Those who criticize or defend judicial activism must try to es-

cape the tyranny of labels and explain more clearly the reasons for their

conclusions.

In this chapter I will identify some implicit assumptions made by

those who accuse the Court of engaging in judicial act ivism. It is much

easier to see judicial activism as a pressing problem if you believe that

judges should decide only what is necessary to resolve disputes be-

tween private parties; that judges can legitimately discover only clear

answers in the framers’ text or intent; that real rights are rarely, if ever,

part three: beyond judicial activism

234

threatened in a liberal democracy; that judges enforce their inf‌lated

views of rights as absolute trumps and f‌inal words; and that democ-

racy depends on legislative supremacy. Conversely, judicial activism is

much less of a problem if you believe that the Supreme Court should

decide legal issues of national importance; that all judging involves

bounded creativity; that the state does violate real rights; that rights

recognized by the Court need not be absolute; and that the Court’s

decisions are not inherently undemocratic or the last word in a democ-

racy. Revealing the implicit assumptions will not result in agreement;

it will, however, result in a better debate.

The Myth That Judges Can Avoid Deciding Charter Issues

a common criticism in debates about judicial activism is that courts

engage in it when they decide constitutional issues that are not abso-

lutely necessary to settle a live dispute. In the United States there is a

long tradition of courts avoiding constitutional decisions and deciding

them narrowly on the facts of the particular case.1 The idea that courts

should, whenever possible, avoid or limit constitutional judgment has

inf‌luenced conservative critics of judicial activism: they argue that the

Supreme Court has abandoned its traditional adjudicative function of

settling disputes and become an “oracle” that tries “to solve social prob-

lems by issuing broad declarations of constitutional policy” and that it

regularly displays “judicial hubris” by unnecessarily making constitu-

tional pronouncements.2 These crit ics should confront whether t hey

really want judges to duck constitutional issues and explain why the

very act of avoidance is itself not an implicit rejection of the merits of

the claim being avoided.

The myth that judges can avoid constitutional issues is perhaps

best illustrated by the unhappy stories of two unlikely people whose

lives intersected because the Court ducked the issue of fetal rights. One

was Joe Borowski, a pro-life crusader from the Prairies, and the other

was Chantal Daigle, a young woman from Quebec who found that

her ex-boyfriend, Jean-Guy Tremblay, had obtained a court order pre-

venting her from obtaining an abortion. Mr. Borowski, who had been

a social democrat Cabinet minister in Manitoba for a short time before

resigning so he could speak out against abortion, passionately believed

that the fetus was protected by the Char ter and was offended at the idea