The Supreme Court Of Canada

n response to the criticisms of those who are anti-judicial activism, “supporters of judicial activism say such activism through judicial review is necessary because it allows the courts to step in and fill gaps in the law where minorities are not protected because of political pressures and where politicians are afraid to legislate” . This raises the argument that judges and the judiciary play a balanced activist legislative role in such a way that it protects the rights of minorities from legislation or regulation imposed by the government. Within our democratic system, legislators will pay attention to what the majority wants and they will pursue public policies, which favour the majority. This leaves minority interests vulnerable to the legislations and regulations imposed by the government. By playing an active role, the judiciary ensures that the rights of the minorities are protected and that law does not contravene with the Charter of Human Rights and the Constitution of Canada. Through this kind of judicial activism, the courts strike a balance with the legislatures role. This is not to say that the judiciary takes on the role of policymaking and the legislature, but rather that both institutions embrace what is referred to as a “dialogue” where there is a balance between judicial decision-making and legislative-executive decision making . However, according to MacKay, “it is legitimate for the courts to engage in a form of judicial policy making so long as they do

The entrenchment of rights in the Canadian Constitution comes after long experience with a system of parliamentary supremacy. The American judicial tradition of treating the written constitution as fundamental law cannot have an instant Canadian counterpart. Thus, it does not follow that the Canadian courts will necessarily claim a role comparable to that of courts in the United States, nor is it clear that the representative bodies in Canada would tolerate such a judicial assertion of power. Opposition by government bodies to the Charter have already occurred in Canada, where the Parti Quebecois government of Quebec invoked the “notwithstanding the Canadian Charter of Rights and Freedoms” clause for the purpose of protecting their language laws from attack under the charter. This report will attempt to note some of the common and distinctive features of the text of the two constitutions as well as to how they differ.

In contrast to the Canadian parliamentary system, which has remained fairly static and unchanged since Victorian times, the Canadian legal system has undergone a tremendous evolution over the last century and a half. When looking at Canadian history in depth one discovers the repeated movement to take power from the superiors or the overruling and place it into the palms of the people. As seen through examples our western law (canadian law) has slowly branched off from the supremacy of God (mosaic law), to the supremacy of the monarchy (bristish law), finally to a realization of the importance of citizen participation in the creating, governing, and administrating of the laws (Greek law).

The Canadian Charter of Rights and Freedoms is an important milestone in Canadian history. An effort through rigorous debate and compromise gave birth to this document that defines our collective values and principles by guaranteeing and protecting the fundamental rights of its citizens. Prior to the Charter, there was no gurantee in Canada that rights and freedoms would not be taken away by legislation. The Charter also allows courts to render the constitutional duty so that any decisions made are consistent with those rights and freedoms. The Charter was established firmly in “The Constitution Act, 1982”, with the declaration of this act Canada escaped from the severe practice of concept of parliamentary supremacy. The Charter has an enormous effect on court’s decision power to award justice to important and debatable issues about policies that affect public. In awarding the verdict courts are not even reluctant to rewrite laws that violate the testament of the Charter. The judges have a duty to regulate the rulings of both provincial and federal governments which, disagree with the root value of Charter.

Between the two schools of epistemology, rationalism and empiricism, I am inclined towards the philosophies of rationalism. I am persuaded towards philosophical approaches which are superior at attaining truth. Empiricism relies on observation using the five senses in reasoning to achieve truth. However, in Plato’s Thaetetus, Socrates gives strong arguments for the limitations of human perception. The Canadian legal system, also, recognizes flaws in human observation, which increases my skepticism of empiricism. Conversely, rationalism relies solely on the use of logic and deduction in reasoning. Both, Plato and Socrates stressed the value of rationalism through the ability to know and express combinations of elements through mathematics. Large

As time goes on, some countries become more relevant in the global sphere while others start to fade away. Canada is a country that only becomes more relevant as time goes on. Since being granted full sovereignty, Canada has had a growing role as a major world player. Much of their international growth has to do with its close ties to the United States and the United Kingdom. However, the country has also undergone huge change and refocusing on a domestic level. With influence from both Europe and the United States, Canada has a very unique system of governing. This paper will focus on a few major areas of Canada. It will look into the history of Canada, the structure of its government, its politics, and many of the major issues it faces today.

Canada has become a country where laws such as: assisted suicide, prostitution, and abortion are becoming easily altered by higher powers; the power of the judges. Canadian judges are changing certain laws that affect the quality of living. The question comes down to who is truly in charge of law making in Canada? The government may make the laws, but judges may reject and change the entirety laws through the use of the entrenchment of the Charter. Additionally, judicial supremacy retains their power through a paradoxical parliamentary supremacy. Furthermore appointing government officials and electing government officials plays a tremendous part in correlations to Canadian democracy. To summarize, judiciary are too powerful through the entrenchment

Throughout the 1950’s and 1960’s Canada achieves it’s ‘just society” by developing equal and fair rights through collective rights for some of its most affected groups. Canada achieved its goal in becoming a just society by amending the collective rights of the Aboriginals. Since Confederation the Federal

In common law, judges interpret the law and judge apply it based on precedent from previous cases; compared to civil law which focuses on written legislature. In Canada, judges are given the chance to be activists. If a judge believes a citizen’s rights, under the Canadian Charter of Rights and Freedoms, are being violated, they are given the power to rule against the unconstitutional law made by the elected branches of government; this concept is referred to as judicial activism (Hausegger, Hennigar, & Riddell, 2015, p. 123). Judicial activism ensures the individual rights of each person are upheld, but the concept is controversial. Judicial activism is problematic because it awards an authoritarian level of power to unelected judges, which goes against Canada’s democratic ideology where elected officials decide and vote on the laws (Cameron, 2009, p. 27). I argue that judicial activism should not be a part of Canada’s judicial process because it gives too much power to the courts and disrupts the democratic process of

Pierre Elliot Trudeau was arguably one of the most vivacious and charismatic Prime Ministers Canada has ever seen. He wore capes, dated celebrities and always wore a red rose boutonniere. He looked like a superhero, and often acted like one too. Some of the landmark occurrences in Canadian history all happened during the Trudeau era, such as patriating the constitution, creating the Canadian Charter of Rights and Freedoms and the 1980 Quebec Referendum. However, it is Trudeau’s 1969 “white paper” and the Calder legal challenge which many consider to be one of his most influential contributions to Canadian history.

Opposing the belief that a dominating leader is running Canada, Barker brings up several key realities of the Canadian government. He gives examples of several “… instances of other ministers taking action that reveal the limits prime-ministerial power,” (Barker 178). Barker conveys the fact that Canada is not bound by a dictatorial government, “…it seems that the prime minister cannot really control his individual ministers. At times, they will pursue agendas that are inconsistent with the prime minister’s actions,” (Barker 181). Both inside and outside government are a part of Canada and they can remind the prime minister that “…politics is a game of survival for all players,” (Barker 188). Barker refutes the misinterpretation of the Canadian government by acknowledging that a prime-ministerial government existing in Canada is an overstatement.

Firstly, the appointment of judges shapes Charter interpretation, forcing Canadians to reconsider the people they have given power to and to rethink the Charter’s interpreters’ authority in creating a more “just” society. Unlike the politicians that Canadians decide to have authority over Canadian administration of justice, taxes, foreign affairs, and other issues of national concern; ever since Canada instituted the Charter into the Constitution, many concerns that politicians once burdened themselves with are now turned over to judges whom society cannot elect or un-elect. However, in an article called “Does the Supreme Court of Canada need more checks and balances?” Jeffrey Simpson states “The prime minister has complete discretion to nominate whomever he or

The most legally significant development of Canadian Law is the R. v. Morgentaler case due its progressiveness, its impact on society, and its continued relevance. During a time when sexism continued to play a role in many legal cases, Canada set the precedent of allowing women the right to govern their own bodies, and became one of the first countries in the world to legally allow the termination of pregnancies. Canada is a country that was built on the beliefs of the Christian community, and in this case, the judicial system had to overcome the pressure from countless influential Christian groups who were extremely opposed to the legalization of abortion. By disregarding this influence and biding by the constitution, the Supreme Court of

One has to understand that tribunal decision that tends to uphold statutory intentions, including protection of the public interest, require greater respect during the review. This means that the reviewing courts should show deference to a significant extent to tribunals during cases of such kinds (Boyd 279). Likewise, in its review, the court should consider the technical aspects involved in the decision-making process by the tribunal in question (Boyd 267). It can be fairly said that the tribunals might be better placed to make the appropriate choice from the available options due to aspects such as specialization and understanding of the circumstances leading to the case at hand. By considering such aspects, the reviewing court should exhibit deference to the tribunal’s decision. Here the committee at the College of Physicians and Surgeons of British Columbia was set to act as a decision-maker in the belief that it had an upper hand in selecting the appropriate choice. Thus, the reviewing judge’s disregard of such responsibility granted to the committee clearly illustrates that judicial review in Canada overlaps the work of administrative tribunals. Instead of supporting bodies that are mandated to address certain matters of public interest, judicial review process downplays their

Most social movements in India since the 1970s have actively used the Courts-especially the Supreme Court-as a part of their struggles. This has been possible because of the higher Courts’ activism, especially under the guidance and action of Public Interest Litigation. Through the instrument of Public Interest Litigation, the Court liberated itself from traditional constraints in the legal system so as to reach out ‘to the weaker sections of Indian humanity.