Judicial Activism in Canada - Overview

Overview

Judges in Canada are given the power to interpret law passed down from the legislature, discretionary power to resolve disputes, and the power to use common law and accepted judicial policy to render judgement. By the principle of separation of powers, a strong tradition in Canada and accepted practice, judges should respect the role of the legislature to create law. Judges are also charged to impartially apply the law as it is written.

Canada has a legal system that is derived from British system of common law (and the French system in the province of Quebec). Canadian Courts have a structure that relies more heavily on the discretion of its judges, policy and common law to create a workable body of law. Thus Canada's legal system may have more potential for conflicts with regards to the accusation of than the judicial activism, as compared to the United States.

The Supreme Court Justice of Canada stated that:

the charge of judicial activism may be understood as saying that judges are pursuing a particular political agenda, that they are allowing their political views to determine the outcome of cases before them. ... It is a serious matter to suggest that any branch of government is deliberately acting in a manner that is inconsistent with its constitutional role.

Such accusations often arise in response to rulings involving the Canadian Charter of Rights and Freedoms. Specifically, rulings that have favored the extension of gay rights, have prompted accusations of judicial activism. Justice Rosalie Abella is a particularly common target of those who perceive activism on the Supreme Court of Canada bench.

The recent judgment Chaoulli v Quebec 1 R.C.S. which declared unconstitutional the prohibition of private healthcare insurance, and challenged the principle of Canadian universal health care in Quebec was deemed by many as a prominent example of judicial activism. The judgment was written by Justice Deschamps with a tight majority of 4 against 3.