Supreme Court on Trial: Judicial Activism or Democratic Dialogue

Agar Adamson is the author of Letters of Agar Adamson, 1914–19 and former chair of the Department of Political Science at Acadia University in Nova Scotia.

As Canadians celebrate—or curse—the Charter of Rights and Freedoms
on its 20th birthday, it is fair to say that no single issue has
separated the Charter’s supporters from its detractors than the issue
of judicial activism. Under the Charter, unelected justices can declare
ultra vires acts enacted by democratically elected politicians; in so
doing, they can create laws they do not have to answer for in the next
election.

In this well-researched, thoroughly documented, and lucidly written
study, Kent Roach (faculty of law at the University of Toronto) notes
that judicial activism did not originate with the Charter; it has always
been part of Canadian federalism. Although the Charter has transformed
us from a “we” society to a “me” society, with Canadians
individually seeking to protect their Charter “rights,” it did not,
Roach argues, result in the Americanization of our legal system, as
critics on both the right and the left have charged. The Charter differs
markedly from the American document, he points out, because of the
inclusion of sections 1 and 33.

In his final chapter, Roach writes, “Dialogue between courts and
legislature under the common law and modern bills of rights such as the
Charter is … based on ‘active citizenship’, because the elected
legislature can take responsibility for reversing or revising the
Court’s decision.” This process was illustrated in the “rape
shield” decision: Parliament enacted legislation that in effect
overrode the Court’s decision and at the same time protected the
Charter rights of the accused.

The Supreme Court on Trial was shortlisted for the 2002 Donner Prize
for best book on Canadian public policy. It will serve as a very useful
research tool for students (amateur and professional alike) of law and
politics.