PoliSci Essay Rough Draft

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1020E

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Political Science

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Jan 9, 2024

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1 Kai Martineau Polisci 1020E Dr. Jonasson July 9th, 2023 Beyond Boundaries: Enhanced Activism and Legislative Power in Canada Canadian courts' level of judicial activism has given rise to an ongoing debate surrounding judicial authority. One perspective argues that the courts have become excessively engaged in shaping laws and policies while exceeding their traditional duties (Anand, 2011). The judiciary's heightened activism undermines the authority of elected representatives and intrudes upon the boundaries of their lawmaking powers. In this context, 'activism' refers to the judicial sector's tendency to actively shape laws and policies, often going beyond their traditional role of strictly applying the law. 'Elected representatives' in this context are individuals chosen by the public through democratic elections to represent and legislate on their behalf. The central focus of this paper will be to strengthen the debate that Canadian courts are to activist, dismissing their interpreted roles and usurping the power of elected legislatures. By exploring relevant case examples involving the expansion of judicial decision-making powers, challenges toward legislative authority, and concerns over democratic legitimacy, the following analysis will enhance one's understanding of the issue and shed light on its implications on the Canadian political landscape.

2 After the Canadian Charter of Rights and Freedoms installment, a debate was born, and there was an expansion of judicial decision-making in Canada (Cameron, 2009) . Some critics claim that at the time the nine unelected judges on Canada {u2019}s Supreme Court were using the Canadian Charter of Rights and Freedoms to manipulate public policy to gain influence over those of elected power (Roach, 2016). Furthermore, "Regardless of the prime minister who appointed them, Canadian judges have shown a willingness to depart from political party lines in their judicial decision-making" (Said, 2022). An example case of this would be Carter v. Canada (2015), where the court struck down the ban on physician-assisted dying, stating that it infringed upon the right to life, liberty, and security of the person guaranteed by the Charter. The ruling passed in 2021 made anyone with an insufferable mental or physical illness eligible (Hopper, 2023). Despite the attempts by Parliament to impose limitations on physician-assisted dying by restricting the physical and, more recently, mental requirements, the court exhibited a dismissive attitude (Hopper, 2023). This behaviour suggests that the courts' assumed that the ruled regulations would effectively prevent any consequences. In addition to Carter v. Canada, the case of Vriend v. Alberta, analyzed by Macklem (1999), demonstrates that the Supreme Court of Canada heightened activism by extending the law and going beyond the legislature's intentions. The case revolved around a dispute between Delwyn Vriend, a King's University College in Edmonton teacher, and the college administration. The college had laid off Vriend for wearing clothing with a

3 homosexual slogan that mocked the school's religious code of conduct. Vriend appealed the dismissal, claiming it violated the ban on discrimination based on sexual orientation in the Alberta Human Rights Act. Notably, the Alberta Legislature had explicitly refused to include such a prohibition in the Act. Despite this, the Supreme Court, in its ruling, interpreted the Act to include a ban on discrimination based on sexual orientation (Macklem, 1999, p. 197). Macklem's analysis reflects the court's enhanced activism and its impact on the public by evidently stating the court's proactive approach toward shaping legislation to advance the rights of a specific group. The Supreme Court's decision to interpret the Alberta Human Rights Act in a manner that went beyond the legislature's intentions further shows its proactive approach to shaping legislation to advance the rights of specific groups. This result demonstrates the courts' willingness to assert their authority and influence public policy, raising concerns about the balance of power between the judiciary and the elected representatives in the legislative process. Both cases demonstrate the perception that there is an expansion of judicial decision-making in Canada's courts and that they display a proactive role in shaping laws and policies. Furthermore, it raises important questions about the balance of power between the elected representatives and the judiciary in the legislative process, particularly concerning the Canadian Charter of Rights and Freedoms. Alongside the expansion of judicial decision-making, it could be argued that there is a challenge to legislative authority that also contributes to the

4 Canadian court system's heightened activism. For instance, analyzing The Supreme Court of Canada's decision on same-sex marriage via the Same-Sex Marriage (Peter, 2006) case. Canada enacted the Civil Marriage Act, which legalized same-sex marriage (Peter, 2006). The court ruled that the traditional definition of marriage between a woman and a male counterpart violated one's equality rights protected under the Canadian Charter of Rights and Freedoms (Peter, 2006). This ruling undeniably changed the traditional definition of marriage while legalizing same-sex marriage across the country. Some groups argue that by redefining marriage (in its interpretation of equality rights), the court overstepped and engaged in lawmaking, a job reserved for elected legislatures (Cossman, 2019). A similar example can be referenced to The Supreme Court of Canada's ruling in R. v. Morgentaler (1988), which struck down existing restrictions on abortion, creating a legal void (Vachon1, 2020). In this context, a 'legal void 'refers to a situation lacking evident or enforceable legal regulations on a specific issue. The court's decision in R. v. Morgentaler effectively invalidated the existing laws on abortion that the elected legislatures had put in. This decision shifted the responsibility of regulating abortion from the elected representatives in Parliament to the judiciary. Moreover, the government was forced to create new legislation (Vachon1, 2020). Debatably, the challenge of authority is evident in balancing authoritative power between the courts and the legislative branch. These examples highlight the controversy of power between the legislative and judicial authorities in Canada. These instances in which the

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