Author(s)

Publication Year

Publisher

Supreme Court on Trial

The Supreme Court of Canada has been accused of usurping Canadian democracy on a long list of divisive topics, including assisted dying, sex work, supervised injection sites, same-sex marriage, labour relations, election spending, and health care policy. Some critics claim that the nine unelected judges on Canada’s highest Court have used the Canadian Charter of Rights and Freedoms to impose their own views on public policy over those of elected governments. This book joins the crucial debate about the Charter, the Court, and Canadian democracy, and was shortlisted for the Donner Prize in public policy when originally published.

Some of the questions that Kent Roach considers in this important and timely book include: What is judicial activism? Is the Charter making us more like America, where the political nature of the judges appointed to the Court has become critical? Can judges simply read their own political preferences into the Charter? Are judges captive to special interests? What can governments and people do when they think the Court has got it wrong?

This revised edition updates the continued dialogue between the Court and Canadian governments and society over Charter issues, including recent dialogues about assisted dying and supervised injection sites. It also responds to criticisms from some commentators that the dialogue between courts and the government is a fraudulent and undemocratic monologue, and from others who believe that this dialogue can undermine the rule of law. In short, The Supreme Court on Trial makes an important contribution to understanding the role of the Court and the Charter in our democracy.

Kent Roach

Kent Roach is a professor of law at the University of Toronto, where he holds the Prichard-Wilson Chair in Law and Public Policy. He formerly served as a law clerk to Justice Bertha Wilson of the Supreme Court of Canada. In 2002, he was elected a fellow of the Royal Society of Canada; in 2013, he was awarded a Pierre Trudeau Fellowship; and in 2015, he was appointed a member of the Order of Canada. Professor Roach is the author of thirteen books, including Constitutional Remedies in Canada (awarded the 1997 Walter Owen Book Prize) and now in its second edition; Due Process and Victims’ Rights (shortlisted for the 1999 Donner Prize); The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (shortlisted for the 2001 Donner Prize) and now in a revised edition; Brian Dickson: A Judge’s Journey, co-authored with Robert Sharpe (winner of the 2003 Defoe Prize); The 9/11 Effect: Comparative Counter-Terrorism (co-winner of the 2012 Mundell Medal); and False Security: The Radicalization of Canadian Anti-Terrorism, co-authored with Craig Forcese (winner of the 2016 Canadian Law and Society book prize). He is also the author of Criminal Law, now in its sixth edition, in the Irwin Law Essentials of Canadian Law series. Professor Roach has represented interveners in many Charter cases, including Downtown Eastside Sex Workers on standing, Khawaja on terrorism, Sauvé on voting and equality, Latimer on mandatory penalties, Golden on strip searches, and Ward on Charter damages.

Chapter Title Abstract Contributors Pages Year Price

Preview

Outline of the debate over judicial activism in relation to the manner in which the Supreme Court of Canada has interpreted the Charter. 13 $1.30

Preview

Outline of the debate over judicial activism in relation to the manner in which the United States Supreme Court has interpreted the Bill of Rights. 22 $2.20

Preview

Discussion of pre-Charter cases where the striking down of laws infringing civil liberties was criticized as judicial activism. 19 $1.90

Preview

Discussion of the negotiations leading to the adoption of the Charter, and its influence domestically and abroad. 19 $1.90

Preview

Discussion of critiques of judicial activism from various perspectives, and how the debate in Canada ought to be distinguished from that in the United States. 31 $3.10

Preview

Discussion of the meaning of judicial activism by exploring popular understandings of the phrase, and the differences between American and non-American approaches to it. 17 $1.70

Preview

Examination of the claims of judicial law making advanced by critics of judicial activism. 30 $3.00

Preview

Examination of the role and practice of the Supreme Court in resolving legal issues of national importance, primarily in the area of public law involving the state. 14 $1.40

Preview

Discussion of various cases to illustrate how the Supreme Court has become more deferential to governmental attempts to limit rights. 22 $2.20

Preview

Discussion of various Charter decisions to illustrate how legislatures usually have been able to effectively advance their objectives with prompt replies to such decisions without the use of the … 34 $3.40

Preview

Examination of implicit assumptions made by those who accuse the Supreme Court of engaging in judicial activism. 19 $1.90

Preview

Discussion of the conventional theories of judicial review and critique of the idea that judges will reliably reach right answers that are consistent with democracy. 16 $1.60

Preview

Discussion of the process by which the decisions of the Supreme Court be respected and obeyed while not necessarily giving the Court the final word. 15 $1.50

Preview

Discussion of cases in which the Supreme Court examined legislation enacted in response to its previous decisions. 40 $4.00

Preview

Discussion of how the Charter has avoided judicial supremacy through justifiable limits in s. 1 and legislative override in s. 33. 9 $0.90

Preview

Discussion of whether dialogue between the courts and legislatures fits the practice of judicial review under the Charter. 48 $4.80

Preview

Reply to criticisms of the role of the dialogue metaphor in explaining the nature of judicial decision making. 46 $4.60