Judicial Power and Canadian Democracy

by Howe, Paul; Russell, Peter H.

• ISBN13: 9780773522251
• ISBN10: 0773522255
• Format: Paperback
• Copyright: 2001-09-01
• Publisher: McGill Queens Univ Pr

Summary

The role the courts should play in Canada's political system is a long-simmering issue. Ever since the Charter of Rights and Freedoms came into effect in 1982, Canada's courts have been empowered to strike down any legislation held to contravene Canadians' basic rights. While any number of court rulings since that time have caused a stir in legal and political circles, in the past several years judicial decisions have attracted the attention of a broader public. Landmark rulings on a range of controversial issues, from aboriginal claims to gay rights, have captured the headlines and catalysed public debate over the merits of judicial power. These controversies raise challenging questions about the role of a powerful judiciary in a democracy. In Judicial Power and Canadian Democracy, a series of essays commissioned by the Institute for Research on Public Policy, some of Canada's foremost commentators - academics, politicians, and Supreme Court judges themselves - take up the debate. Some tangle over the pivotal question of whether judges should have the decisive say on issues involving entrenched rights that have profound implication for the policy preferences of elected bodies. Others examine related issues, including Supreme Court appointment procedures, interest group litigation, the historical roots of the notwithstanding clause, and the state of public opinion on Canada's courts. Those interested in the power of the judicial branch will find much in this collection to stimulate fresh thinking on issues that are likely to remain on the public agenda for years to come.Contributors include Joseph F. Fletcher (Toronto), Janet Hiebert (Queen's), Gregory Hein (Toronto), Peter W. Hogg (York), Paul Howe, Rainer Knopff (Calgary), Sébastien Lebel-Grenier (Sherbrooke), Howard Leeson (Regina), Kate Malleson (London School of Economics), E. Preston Manning (Reform Party of Canada), Hon. Beverley McLachlin (Supreme Court of Canada), F.L. Morton (Calgary), Pierre Patenaude (Sherbrooke), Peter Russell, Allison A. Thornton (Blake, Cassels and Graydon), Frederick Vaughan (emeritus, Guelph), Lorraine Eisenstat Weinrib (Toronto), Hon. Bertha Wilson (emeritus, Supreme Court of Canada), and Jacob Ziegel (Toronto).

Table of Contents

Acknowledgments	vii
Introduction	ix
Contributors	xvii
PART A: SETTING THE STAGE: THE JUDICIARY'S ROLE IN CANADA AND BRITAIN
Judicial Politics in Canada: Patterns and Trends	3	(24)
Frederick Vaughan
A British Bill of Rights: Incorporating the European Convention on Human Rights	27	(36)
Kate Malleson
PART B: ARE JUDGES TOO POWERFUL? DEBATE AND DIALOGUE
Courts, Legislatures and Executives in the Post-Charter Era	63	(10)
Hon. Beverley McLachlin
We Didn't Volunteer	73	(7)
Hon. Bertha Wilson
The Activist Constitution	80	(7)
Lorraine Eisenstat Weinrib
Courts Don't Make Good Compromises	87	(7)
Rainer Knopff
The Charter and Legitimization of Judicial Activism	94	(5)
Sebastien Lebel-Grenier
The Provincial Court Judges Case and Extended Judicial Control	99	(7)
Pierre Patenaude
The Charter Dialogue between Courts and Legislatures	106	(5)
Peter W. Hogg
Alison A. Thornton
Dialogue or Monologue?	111	(7)
F. L. Morton
Reform's Judicial Agenda	118	(5)
Peter H. Russell
A ``B'' for Prof. Russell	123	(8)
E. Preston Manning
PART C: JUDICIAL AUTHORITY, ISSUES AND CONTROVERSIES
Merit Selection and Democratization of Appointments to the Supreme Court of Canada	131	(34)
Jacob S. Ziegel
Wrestling with Rights: Judges, Parliament and the Making of Social Policy	165	(49)
Janet L. Hiebert
Interest Group Litigation and Canadian Democracy	214	(41)
Gregory Hein
Public Opinion and Canada's Courts	255	(42)
Joseph F. Fletcher
Paul Howe
Section 33, The Notwithstanding Clause: A Paper Tiger?	297
Howard Leeson