I would encourage people to read the About page before diving into this first blog post, especially the Disclaimer section… Now that that is done, enjoy!
Many commentators (often conservatives – and I use that term in its wide sense not solely its political or partisan sense – but also people who [over]value the sovereignty of Parliament) have critiqued our courts, especially the Supreme Court of Canada (SCC), of indulging in judicial activism. This was particularly true after the advent of the Canadian Charter of Rights and Freedom in 1982. These criticisms have resulted in an increased deference to the two other branches of government (legislative and executive) in public law. The Khadr 2010 decision is a perfect example. This trend is not healthy for our judicial system and I intend to show why in this post.
Judicial activism is the concept that a judge may use his judicial power to create laws, abolish laws or change laws for a specific socioeconomic purpose. The term has a negative connotation as it is often used to describe judges who allegedly step out of the “impartiality zone” that judges are supposed to occupy. It is when a judge becomes involved in a case in an allegedly “partial” manner.
A partial judge you say? How inappropriate!
Our adversarial judicial system is based, amongst other things, on the notion that a neutral impartial judge adjudicate dispute between two (or sometimes more) engaged parties. Of course I do not believe that human beings are capable of absolute neutrality. Nevertheless, our judges do a fairly good job at staying appropriately neutral, or in legal terms: reasonably neutral.
But what does “appropriately neutral” mean? Some would argue that it means staying out of judicial activism. But usually those people have a very specific view of what is judicial activism. In fact I believe that this view is often misleading as many judgments taxed with judicial activism are in my opinion within the limits of appropriate neutrality. This view is the association of progressive legal interpretations with judicial activism.
I see 4 reasons why this view of judicial activism is wrong:
1. The Common Law system:
Our judicial system is mainly based on the English Common Law system (9 out of 10 provinces for private law and all provinces for public law, federal law is a mix of both systems). This system gives much leeway to judges who literally create and interpret the common law (a form of law based on judicial precedents). It is thus normal for judges, the “masters” of the common law, to interpret and apply the law in a flexible and non-strict manner.
2. Statutory interpretation and legal ambiguities:
Anyone who is familiar with the law is well aware that legislation, the Constitution and the common law are far from being clear and unambiguous. To remedy this situation the courts and the legislatures have adopted a series of interpretation rules and principles. Sometimes these principles will demand a broad and liberal interpretation (like with human rights) and sometimes they will demand a strict one (like with detailed and clear regulations).
3. The choice of Inactivism:
When a judgment is deemed “activist”, it is often seemed as a policy decision. But what about inactivism? It is often forgotten or simply not considered that the choice of inaction (status quo) is still a choice and still has legal and “policy” impacts on society. As Justice Kirby formerly of the High Court of Australia said “activism is in the eyes of the beholder”. As he indicated during a presentation at the UBC Law Faculty: If you are progressive and try to interpret the law as an evolving concept that encompasses modern view of human rights, you are considered an activist, but a judge that does the contrary (applying the law the traditional way) is still an activist since is inaction is favouring the conservative side.
4. A check on government:
One of the role of the judicial branch is to act as a check on the legislature and the executive. Courts are the guardians of the Constitution and of the Charter, and it is their role to ensure that legislation and government actions respect the fundamental law of Canada and the rule of law. Under the common law and now some statutes, the courts have the power to review administrative decisions to ensure that they respect the law. Those powers obviously require that courts intervene in the other spheres of government and require some flexibly in the application and interpretation of the law.
Thus if our legal system and our Constitution give to our courts discretion in the exercise of its powers and leeway in interpreting the law, I don’t see how “judicial activism” would be a bad thing (especially since activism is in the eyes of the beholder) if proper justification is provided by the judge. Furthermore, I believe that not indulging in the so called judicial activism in some cases may result in unfair and unjustifiable results (such as upholding a government decision that violates the right to life and security of the person or falling to apply an aboriginal ancestral right properly for purely economic reasons).
So, what is an appropriately neutral decision? In my opinion, it’s a decision that is reasonable, that is based on facts, and that is legally sound. It sounds broad, but that’s what law is most of the time: vague and broad. The same facts won’t always lead to the same decision since judges are not robots, thankfully. We, especially the conservative crowd, must simply accept that fact and move on.
It’s time for our courts to stop worrying about judicial activism and start fixing some legal problem created by the strict legal interpretation of the last few years. After all, the law needs to progress.
 Canada (Prime Minister) v Khadr, 2010 SCC 3: http://scc.lexum.org/en/2010/2010scc3/2010scc3.html
 Presentation of the Honourable Justice Kirby from 17:00 to 18:00 at the Liu Institute (UBC): Public Benefit of Human Rights, 29 September 2010.