The Truth About Canadian Judicial Activism Sanjeev Anand* Introduction of legislatures to e!ectively respond to such rulings, thereby giving judges the last word "e topic of judicial activism in Canada over matters involving rights and freedoms. generates considerable disagreement. At a recent conference, retired Supreme Court of Canada Justice John Major stated that “there is no Judges Making Law Without such thing as judicial activism in Canada.”1 In Relying Upon the Charter 2001, speaking in his capacity as the Canadian Alliance’s Justice critic, the current federal It is commonly believed that, prior to the Minister of Justice and Attorney General, Vic enactment of the Canadian Charter of Rights Toews, told Parliament that the Supreme Court and Freedoms5 in 1982, judges interpreted the has “engaged in a frenzy of constitutional law, and did not take it upon themselves to experimentation that resulted in the judiciary make law. "us, many people view the Charter substituting its legal and societal preferences as ushering in an era of law-making by the for those made by the elected representatives judiciary. While there is truth in the statement of the people . [producing] legal and that judges play a larger role in shaping constitutional anarchy.”2 One prominent government policy and legislation today than constitutional scholar fears that the debate they did prior to 1982, it would be inaccurate to on judicial activism in Canada has begun to portray the judiciary of the past as not engaging produce excessive judicial deference that allows in law-making. In many areas of private law, legislatures and o$cials to act without scrutiny such as torts6 and contracts, the law has been by the judiciary concerning the e!ects of state largely dependent on judicial decisions.7 action on vulnerable minorities.3 A prime example of such judicial activism But it is impossible to properly discuss is the famous 1932 case of Donoghue v. Canadian judicial activism without %rst Stevenson,8 in which the plainti! and her de%ning the term. Although the components of friend visited a café, and the friend ordered a judicial activism have been described slightly ginger beer for the plainti!. Unfortunately, the di!erently by a number of individuals,4 these ginger beer bottle contained a decomposed de%nitions either expressly incorporate or at snail. Upon discovering the remains of the least accommodate the following characteristics: snail a#er consuming a portion of the contents the tendency for judges to make, as opposed of the bottle, the plainti! alleged she su!ered to simply interpret, the law; the willingness shock and gastroenteritis. As a result, she sued of courts to issue rulings reversing or altering the manufacturer for damages. Although a the legislative enactments of Parliament and strong contention could be made that the the provincial legislatures; and the inability manufacturer was in breach of its contract Constitutional Forum constitutionnel 87 with the café owner by supplying a defective and implement public policy even within the bottle of ginger beer, a lower court, applying criminal justice sphere. "e Court did not the judicially created precedents of the time, articulate exactly how long is too long for an held that because the plainti! was not a party investigative detention. "e matter of how to the contract, she was not eligible to sue for the police are entitled to respond if they have damages. However, the British House of Lords well-founded safety concerns when detaining overturned the lower court’s ruling, and held someone who happens to be carrying a bag that a suit for damages in tort by the plainti! or driving a car was similarly omitted. "ese against the manufacturer was not precluded. shortcomings of the ruling are not surprising "e Court reasoned that a duty of care was because the Court is limited to addressing only owed to all reasonably foreseeable victims of those issues that are raised by the parties that the defendant’s negligent conduct. "is judicial happen to come before it and, as a result, the creation of a robust negligence tort continues rules emanating from the Court tend to be to animate product liability cases today. In piecemeal, as opposed to comprehensive and 1995, the Supreme Court of Canada held that prospective. In addition, when the Court carves women who received defective breast implants, out police powers, it does so in the context of a and who were not the purchasers of these case involving a guilty person, which evokes a implants, since they were sold only to doctors strong desire to a$rm the conduct of the police and to medical establishments and not directly and expand police powers.13 to the public, had viable tort actions against the manufacturers.9 Sometimes when judges decide to advance the state of judge-made law, the result is to Albeit that many people would applaud the remove legislatures’ impetus to examine and Court’s creation of a tort of negligence, there are comprehensively address the matter di!erently times when judge-made law proves problematic. a#er consulting more diverse sources and hearing In 2004, the Supreme Court recognized a alternate perspectives. If the Supreme Court had judicially created police power that represented failed to endorse the common law police power a signi%cant departure from the status quo. of investigative detention, law enforcement "e traditional view had long been that the organizations would have undoubtedly lobbied police could forcibly detain individuals, absent Parliament for the power to detain short of speci%c statutory authorization, only if they had arrest. In the course of examining the issue, reasonable and probable grounds to arrest them Parliament would likely have held hearings on for an o!ence.10 But in the 1990s, a number of the advisability of expanding police powers, appellate courts began to recognize a police power and it could have heard from groups that to detain and, in certain circumstances, search have been subjected to police harassment and an individual, if the o$cer had a reasonable discrimination, such as the indigent, Aboriginal suspicion that the individual had committed an Canadians, and other visible minorities. A#er o!ence – a lower standard than reasonable and hearing from these groups, Parliament would probable grounds.11 In the course of endorsing have been well situated to fashion a limited, this police power, the Supreme Court provided highly circumscribed, and detailed police some guidance pertaining to the power by power to detain short of arrest that took into stating that any investigative detention must be brief in duration and that, where a police o$cer account the experiences of these groups. As has reasonable grounds to believe that his or it stands, police o$cers have a potentially her safety is in issue or that of others is at risk, expansive power that they have obtained from the o$cer may engage in a protective pat-down the Court, and law enforcement agencies lack search of the detained individual.12 the motivation to lobby Parliament to regulate this area. Moreover, those groups most likely to However, the Court also failed to address be subject to investigative detentions lack the some key matters and in doing so demonstrated power to get this issue on the parliamentary the institutional limitations of courts to set agenda. 88 Volume 15, Number 2, 2006 "ere are ways to ensure that issues like assertion made by the Chief Justice of Canada at investigative detention, which have been a conference that “there is no clear demarcation ruled on by the Court, receive the attention of between applying the law, interpreting the law, legislatures. In the federal sphere, the Senate and and making the law.”16 House of Commons have standing committees that periodically review proposed legislation for its relationship to protected rights. "e duties of Judicial Activism Under the “Old” these standing committees could be expanded Constitution to include the preparation of reports, to be tabled in Parliament, identifying signi%cant Despite the fact that legislatures were o#en recent common law rulings issued by the content with the common law rules prevailing in Supreme Court of Canada, as well as possible an area, if a legislature disapproved of a certain legislative responses. In the course of preparing judge-made law, it could pass legislation to the reports, hearings could be held in which replace the judicially constructed rule as long as interested groups are invited to address the it respected the division of powers between the Court’s rulings before the committee members. federal government and the provinces found in A similar type of process could be developed the Constitution Act, 1867.17 Although judicial through modifying the mandate of provincial enforcement of this division of powers has not legislative scrutiny committees. formed the basis of contemporary claims of When a legislature passes a statutory judicial activism, this was not always the case. provision that falls within its jurisdiction, In an e!ort to alleviate conditions caused by the judges are o#en called upon to engage in a Great Depression of the 1920s and 1930s, the process that, at times, blurs the distinction federal government dra#ed legislation providing between making law and interpreting law. for unemployment insurance, minimum wages, "e best-known federal statute is the Criminal maximum hours of work, and marketing Code.14 Section 43 of the Code reads, “Every legislation to raise low farm commodity prices. schoolteacher, parent or person standing in Prime Minister Mackenzie King then referred the place of a parent is justi%ed in using force the legislative package to the courts for an by way of correction toward a pupil or child, opinion as to its constitutionality.