Judicial Activism

Since the constitution became entrenched into our government, it has become a fluid act. The Charter not only gave citizens rights, it also has given the Supreme Court of Canada the power to interpret previous rights and freedoms more liberally than before. It is changing as the society that lives by this act changes. The laws of our society are governed by precedents set in place years ago. It only makes sense for judicial activism to overthrow judicial restraint. In a functioning democracy it is socially prevalent to have activism. The definition of judicial activism given by Rainer Knopff and F.L. Morton, whom are critics of activism is, "the disposition to interpret rights broadly and to enforce them vigorously against the other branches of government, usually by striking down statutes or excluding evidence in criminal cases" (MacIvor, 34). If judicial activism was not in place, same-sex relationships would still be considered unconstitutional because it does not consist of a man and a woman. Cases such as M v. H would be thrown out in lower courts. M. v. H. was a pivotal case in gaining gay rightsm (MacIvor, 166). If cases such as this did not overthrow unjust laws, the Canadian judicial process would have a destroyed reputation. What type of democracy would Canadians be living in if marriage was still conformed to a male marrying a female?

Christopher Manfredi argues "that the courts have used the broad language of Charter guarantees to elevate themselves above legislators and executives" (MacIvor, 35). The proper role of the courts has changed over the years, and the Supreme Courts have their set of rights. Kent Roach believes by giving judges the opportunity to practice activism, it enhances democracy in our country (MacIvor, 35).

Judicial restraint, on the other hand is, being bound by precedents. When the courts practice judicial restraints, they limit the exercise of their own power. It may come across as a game. Who can knock down the most laws, however, that is far from the truth. Laws are set in place for many reasons, some more obvious than others. The objective of judicial restraint is to uphold the law, unless the law is completely unconstitutional. Sometimes the law does not suit the individual, or the situation. It is difficult to practice restraints on a country that is so diverse. Not all laws can be universal. Morton and Knopff articulate by giving judges the right to reject the decisions made by other political actors is too much. They argue the justices do not have the expertise to make proper decisions in public policy, and are not held accountable.

Mandel argues judicial activism has no place in the judicial process. People whom are in favor of judicial activism use the fact that the Charter is democratic in favor of their view. Mandel argues this by stating, "...the people elected the governments, the governments enacted the charter, so when the judiciary ‘applies' the charter, it is acting no differently than when it applies to any other law... this argument evaporates once it is admitted that the Charter is just a blank cheque for judges" (Mandel, 68). Peter Russell, also in favor of restraints says, "it would be a pity if adoption of a constitutional charter of rights blunted our capacity to recognize that the state is not the only centre of power in our society capable of restricting freedom or equality or of abusing rights." However, by having judicial activism, it requires legislators and administrators to take the rights of minorities seriously.

In class, it was noted activist vs. restraint is respectively the same as non-interpretist vs. interpretist. Restraints in class were described as being bound by the original language of old legislation. Activism was not feeling the need to abide by the intentions of old legislature. Justice Iacobucci discussed the role of Charter in the Vriend v. Alberta case. He affirmed when the Charter was introduced to our country, "each Canadian was given individual rights ad freedoms which no government or legislature could take away... inevitably disputes over the meaning of the rights and their justification would have to be settled and here the role of the judiciary enters to resolve these disputes...it was the deliberate choice of our provincial and federal legislatures in adopting the Charter to assign an interpretive role to the courts.." (MacIvor, 36)

Judicial activism comes in many forms. It may be practiced to increase individual freedom, such as this case of Vriend v. Alberta. Vriend was a college professor when he was terminated, in 1991, on the bases of his sexual orientation. Vriend filed a complaint to the Alberta Human Rights Commission, who refused his complaint because of the Individual's Rights Protection Act. This act did not include sexual orientation as a protected ground. The trial judge found that the omission of protection based on sexual orientation was an unjustified violation of s. 15 of the Charter. The judge ordered sexual orientation to be added to the Individual Rights Protection Act. Vriends' equality right was infringed due to his sexual orientation. By being added to the Individual Rights Protection Act, gay's received the rights they deserved (MacIvor, 36-37). This is activism at work. It looks at rights of the minority, and interprets the constitution in a fair manner appropriate for the individual concerned. In this case, Iacobucci states "excluding sexual orientation from the Individual Rights Protection Act was inconsistent with democratic principles... I believe that judicial intervention is warranted to correct a democratic process that has acted improperly" (MacIvor, 37). I agree with the Justices. Activism is shown here by granting Gays the rights they deserve regardless of what is stated in other regulations and acts. Activism is shown here by giving the individual rights that were overlooked by the greater population. I agree with the outcome. I would have liked to see the sections of the Individual Rights Protection Act that discriminated against sexual orientation thrown out, instead of sexual orientation being read in.

Another form of activism is to increase the power of the system. Activism may come in a vein form where the state may receive more power. An example of this is in the 1997 Delgamuukw case which presented a situation that frustrated the constitutional sovereignty over provincial lands. Delgamuukw is a member of an aboriginal tribe that believed they owned 58 000 square kilometers of land in BC. The appellants claim was based on their historical ownership of the land, and the Province claimed the appellants have no right or interest in the land. The Province insisted that all aboriginal land rights in BC were extinguished by the colonial government in 1871. The appellants evidence of ownership was through a spiritual connection. The land was used as a reminder to the tribe of their identity and sacred connection that they have with their land. The Trial judge dismissed the actions against the Government of Canada. An appeal was made on the bases of aboriginal title. S. 35(1) of the Constitution Act was thoroughly examined to see what content of aboriginal title was protected under this section. At the end, the Supreme Court made no decision on the land disputes. It was concluded another trial was needed (MacIvor, 199). Judicial activism is present because what Aboriginal title consists of was finally addressed. Judicial Activism in this case was in favor of the government because it was concluded Aboriginal title can only be sold to the Federal Government, not to private buyers. This gave the state power over use of the land. If the land can only be sold to the Federal Government, than the Federal Government has control over what is done on or to the land. This is a form of judicial activism that is in favor of the state. In my opinion, I would have liked to see the Aboriginal tribe get full power of the land. The tribe should have been given the right to sell and do as they please with their land. Also, I would have liked to have seen the trial judge give more thought to the spiritual connections aboriginals have with Mother Nature. This was completely over looked.

Another form of judicial activism is to increase group freedom. This may be a group such as gays or an ethnic group. A case this is prevalent in is in the Dunmore v. Ontario (2001) case. The central issue was the constitutionality of an Ontario law forbidding agricultural workers from forming unions. This exclusion of agricultural workers from Ontario Agricultural Labour Relations Act (ALRA) violates s. 2(d) of the charter. Even though this act was put in place to protect family farms from unionization, the courts found by denying the agricultural workers the opportunity to form unions was violating their guaranteed freedom of association, and this was not justified under s. 1 (MacIvor, 275). The solution in this case was to exclude s. 3(b) of the ALRA. This section was found to be unconstitutional. Activism is shown in this case by striking down the ALRA s. 3(b). This is what I would have hoped for. If I owned a farm, perhaps my conclusion would differ, however I do not, so I fully agree with the decisions made by the Supreme Court of Canada. Since it takes a group of people to work in a farm, it cannot be run by an individual, the group involved should have the right to work unionized.

In M. v. R. (1999), the rights of people in same-sex relationships were violated. M and H were two women living in a same sex relationship, and H was the main provider for both. They started a business together, and eventually it went bankrupt. At this time H put a mortgage on her home, as well as got a job outside their establishment, to support her own, as well as M's expenses. In 1992 they separated and M sought a claim for support under the Family Law Act. Since the act, s. 29 defined spouse as a same sex relationship in which the individuals were not married, but lived together continuously not less than three years. This violated M's s. 15(1) right to equality, which was not justified under s. 1 of the Charter. It was found s. 29 of the act violated M's s. 15(1) right, which caused the courts to declare s. 29 of the act of no force and effect. Activism in this case is shown in the final ruling that struck down s. 29 of the act (MacIvor, 32, 166, 167, 210, 214). Activism is very important in this case because it gave more rights to same sex couples, as well as declined the level of discrimination they previously received. This ruling showed other Canadians that same-sex relationships are not wrong; it showed the public that same-sex relationships are on the same level as opposite sex relationships. It shed light on the overlooked fact that gay couples are capable of having components of a relationship, such as- love, respect, support, care, etc, same-sex couples. This is the outcome I would have hoped for. Same-sex couples are faced with prejudice daily. By having laws that prohibit the protection of the law opposite sex couples have just intensifies the disadvantage. The purpose of the Charter is to prevent the violation of individual rights and freedoms. The decision of this case met the purpose.

In conclusion, judicial activism is important in a democratic society. This is evident in the cases presented. It is difficult to fit universal laws to a diverse individualistic society. It is important to protect the rights of underprivileged groups. This is only possible by having judicial activism in our courts. As our society progresses, old legislative language begins to hold less and less legitimacy for tomorrow. Our lives are changing daily by outer influences, such as globalization, technology, extensive exposure to media, and many other factors, it is appropriate for our sanity for our rules and legislatures keep up with the constant transition. I am in complete favor of judicial activism. For me, being Canadian is having the opportunity to be who I am, being able to be an individual, and if in court, be judged as an individual. Long live judicial activism.