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What are research sources for the issue of Judicial Activism on the part of Canada’s...

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avde94 | Student, Undergraduate | Honors

Posted March 4, 2013 at 3:05 AM via web

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What are research sources for the issue of Judicial Activism on the part of Canada’s Supreme Court as a court of final appeal that offer pro, con or neutral positions on judicial activism?

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K.P.L. Hardison | College Teacher | eNotes Employee

Posted June 29, 2013 at 9:39 PM (Answer #2)

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In "The Truth about Canadian Judicial Activism" by Sanjeev Anand, Anand points out that while judicial activism has increased since the 1982 Canadian Charter of Rights and Freedoms provided the Supreme Court with the power of judicial review, the Supreme Court did establish law in private law tort and contract cases. This private law however is not to be considered as weighty as national law making, though Anand does state a more balanced case previous to judicial practice. Nonetheless, Supreme justices recognize a monumental change following the institution of the Charter.

Judicial activism stemming from the power of judicial review is defined by Anand as the "tendency" for the supreme court to rule upon law rather than interpret law from established standards; the "willingness" to overturn Parliamentary and provincial legislation; the "inability" of Parliament or provincial parliaments to "respond" to judicial rulings "thereby giving judges the last word over matters involving rights and freedoms."

Individuals who oppose judicial review protest, like Vic Toews, Minister of Justice and Attorney General, that judicial review has "resulted in the judiciary substituting its legal and societal preferences for those made by the elected representatives of the people."

As Songer and Johnson state in "Judicial Decision Making In the Supreme Court of Canada," Chief Justice Laskin in 1975 believed that the parliamentary decision to allow the Supreme Court complete control over its docket established the Court in its "true" role as the court of final appeal. The passage of the Charter expanded the Court docket so that public law (Parliamentary and provincial legislative law) came to dominate the Court docket (since they had full control over their case hearing docket) as private law receded. Justice Sopinka made a point of emphasizing that the public cannot assume that judicial partiality will override a judge's personal "former political beliefs" and political affinities. In other words, judges cannot be assumed to be impartial when exercising judicial review of Parliamentary and provincial law in their role as justices in the court of final appeal.

Further, Manfredi and Kelly in "Misrepresenting the Supreme Court's Record?" oppose Choudhry and Hunter who assert that the Supreme Court is not engaged in judicial activism in any regard. Manfredi and Kelly further assert that Choudhry and Hunter misunderstand the "purpose of counter-majoritarian judicial review, which is to protect minorities from any oppressive government action," therefore, Manfredi and Kelly assert, the Supreme Court must be seen as a judicial institution and "a political one as well."

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