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Are they encroaching on terrain that is not theirs under our Constitution? In my opinion, the answer is no. When we deconstruct the charge that the courts are overstepping their boundaries, we find that the claim can be understood in four different ways. First, the claim may be understood as saying that judges should never go against the will of elected representatives.
This suggests that the choices of Parliament and legislative assemblies should never be undone by unelected judges. But that, as I have argued, is plainly false under our Constitution. The Legislative and the Executive strive in good faith to discharge their role in a manner that is consistent with our Constitution. They seek to bring forward laws which do not impinge on the Charter , and to implement those laws without infringing fundamental rights.
But every now and then, these efforts are called into question, and someone must arbitrate the dispute. As I said earlier, the terms of our Constitution Acts call on judges to be the arbiters of constitutional validity, both in terms of division of powers, and in terms of respect for fundamental rights. In performing that duty, judges must inevitably strike down legislation, and go against the will of elected representatives, whenever it fails to meet our constitutional standards. Second, 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.
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Very often, on this version, judges are seen as activist when one disagrees with their conclusions. Behind this criticism lies the assumption that the parameters of constitutional adjudication are so indeterminate that judges can bend them at will in the service of their own political objectives. This version of the charge is also problematic, in my view. 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 a suggestion inevitably breeds cynicism, and undermines public confidence in all of our institutions of governance.
It should not be made without convincing evidence of its truth. The evidence that judges in Canada pursue private political agendas is lacking.
Judges are conscious of their special but limited role. Their judgements are replete with the need to defer to Parliament and the legislation on complex social issues. Should judges err and impose their personal views instead of the law, they are likely to be overturned on appeal. They may also be subject to internal censure. A visit to any to the thousands of courtrooms in this country — from the local magistrate courts to the Supreme Court of Canada — is unlikely to discover judges acting like politicians.
Rather, it will find them discussing the facts of the case and how the law applies to them. This is not some form of role play. It is the morality of their role. An objective review of the thousands of judicial decisions reported each year reveals that judicial concern is focussed not on plans to change society, but on interpreting and applying the law in a way that reflects legislative purpose. The idea that judges are implementing their own political agenda may emerge from the fact that judges sometimes make decisions that have political implications.
But it is wrong to jump from this indisputable fact to the conclusion that judges are therefore assuming the political role. The law is the mechanism by which our society regulates itself. That is the business of politicians. But when the validity and interpretation of the laws is brought before the courts, that is the business of judges. The role of judges may take them into subject matter claimed by politicians. But it does not follow that the judges are acting as politicians; the judicial role remains distinct from the political.
In short, I suggest that the second version of the charge of judicial activism is false. The evidence suggests that constitutional adjudication is not a radically indeterminate activity, and that judges are not hiding behind it to pursue political agendas. The third version of the charge of judicial activism begins from the opposite assumption.
It assumes that law is a totally determinate black and white activity. From there, it proceeds to say that judges should apply the law, not make the law, or rewrite the law. This version of the charge of judicial activism rests on a mistaken perception of the nature of legal decision-making.
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The law does not apply itself, and the answers to constitutional questions are not obvious or pre-ordained. If they were, we would not need judges. It follows that there is no clear demarcation between applying the law, interpreting the law, and making the law. The Charter is an abstract document, made up of general propositions which must be given concrete application. To give it meaning, and to make it relevant to the lives of Canadians, judges must make choices among competing readings of our constitutional text, choices which can have long term normative consequences.
All of this is perfectly consistent with the traditional role of judges in our country.
On the Limits of Constitutional Adjudication
Let me turn, finally, to the fourth version of the charge of judicial activism. This version suggests that judges are making decisions that should be made by elected representatives, who alone possess the necessary legitimacy for law-making and the institutional competence to weigh all the factors that must be considered in making difficult choices of public policy for Canadians.
This is a more subtle claim. Let me simply say that judges are sensitive to this concern, but have little choice in the matter. Where a legal issue is properly before a court, not deciding is not an option. When a citizen claims that the state has violated his or her constitutional rights, the Courts must referee the dispute.
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They do so with all necessary deference to legislative and executive expertise in weighing competing demands on the public purse, and competing perspectives on public policy. In deciding difficult social issues, the courts act with deference to the decisions of the legislative branch. Judges recognize that:. Governments act as they think proper within a range of reasonable alternatives, and the [Supreme] Court acknowledged in M. Footnote 3. There are, however, limits.
Deference does not mean simply rubber stamping laws.
If a law is unconstitutional, it is the duty of the courts to say so. In the words of my colleague Ian Binnie, in the recent decision of Newfoundland v. NAPE :. Whenever there are boundaries to the legal exercise of state power such boundaries have to be refereed. Canadian courts have undertaken this role in relation to the division of powers between Parliament and the provincial legislatures since Confederation.
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