Dalhousie Law Journal


Canada, courts, Canadian Charter of Rights and Freedoms, judicial activism, policy, federal cabinet, democracy, Supreme Court of Canada


The expanding role of Canadian courts since the introduction of the Charter has prompted critics to decry what they see as excessive and "anti-democratic" judicial activism. The author addresses such criticisms, responding, in particular, to the arguments of Ted Morton and Rainer Knopff. The article critiques the basic elements of Morton/Knopf's thesis: that activist courts are anti-democratic, excessively political, and engaging in illegitimate law-making. Rejecting the claim that Canada's judiciary is a less democratic state institution, the author notes the powerful law and policy-making role performed by the federal cabinet-for practical purposes, an unelected body. The author endorses the dialogue in which courts and legislators have engaged since 1982. This dialogue, he argues, is not only democratic, but also ensures accountability for the judiciary, the legislature, and the executive. Referring to recent Supreme Court of Canada decisions, the author suggests that critics of "interventionist" courts harbor a narrow and simplistic "majoritarian" view of democracy, rather than a more nuanced and rights-sensitive concept of enhanced democracy. Such critics also seem more displeased with the substance of "activist" decisions than with the legitimacy of the courts in rendering them. The author concludes that Canadian courts are performing their appropriate constitutional role, and are generally doing so effectively.