The Supreme Court on Trial

• Author: Kent Roach
• Pages: 3-15

3

chapter one

The Supreme Court on Trial

In many high-prof‌ile ca ses t he Supreme Court of Canada has found

new rights for unpopular individuals and minorities in the 1982

Canadian Charter of Rights and Freed oms and has placed new obligations

and restraints on governments: it has struck down abortion laws, ex-

tended gay rights, recognized Aboriginal rights, given tobacco compan-

ies the right to advertise, and required the police to obtain warrants

before they conduct searches. These cases make good news because they

produce clear winners and losers. On decision day the nine unelected

judges on the Supreme Court have the last word.

The Court’s new power and prominence has led to new levels of

criticism. Governments have found themselves on trial before the

Court, but the Court itself has been placed on trial by politicians and

the media. Canada’s two national newspapers and Her Majest y’s Loyal

Opposition, f‌irst the Reform Party and now the Canadian Alliance,

have loudly complained that the Court has engaged in “judicial activ-

ism” by inventing rights for minorities and criminals and by imposing

them on the majority of Canadians. Recent debates have been driven

by neo-conservative or right-of-centre concerns that the Court is too

solicitous of the rights of criminals, Aborigina l people, and minorities.

Previous debates, however, have featured arguments from the left that

the Court has been too generous in protecting the rights of corpora-

tions and other powerful interests.

The Supreme Court is on trial. Vic Toews, the former attorney general

of Manitoba and the Canadian Alliance’s Justice critic, told Parliament