Abstract

Since the enactment of the Canadian Charter of Rights and Freedoms, Canadians have played out an American-style debate about judicial activism at an accelerated pace. Throughout the 1980s, a number of commentators on the left expressed concerns that the Court was interpreting the Charter in a manner that would thwart legislative attempts to assist the disadvantaged and strike down progressive social legislation as occurred in the United States in the Lochner era: During the next decade, commentators on the right duplicated American criticisms of the Warren Court by arguing that the Supreme Court was exercising too much power by inventing rights not found in the Constitution, and by enforcing the rights of minorities and criminals against the wishes of the majority and their elected representatives. Despite their different politics, these critics of judicial activism share much. They all believe that judges can read their personal preferences into the Charter; they are all skeptical about the rights asserted in Charter litigation; and they all have faith in majoritarian forms of democracy and legislative supremacy.In this essay, I will argue that the term judicial activism is ultimately not a helpful way to structure debate about judicial review under the Charter or other modern bills of rights that allow rights as interpreted by the Court to be limited and overridden by ordinary legislation. The label judicial activism obscures more than it illuminates and allows commentators to criticize the Court and the Charter without really explaining their reasons for doing so. It hints at, if not judicial impropriety, at least judicial overreaching, while hiding often controversial assumptions made by the critics of judicial activism about judging, rights and democracy. Such assumptions need to be revealed and unpacked for all the world to see.