“Measuring Judicial Activism on the Supreme Court of Canada: A Comment on Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees” (2003) 48 McGill Law Journal 525-562 (with C. Hunter).
In the recent The public debate over judicial activism and the role of an unelected judiciary with respect to public policy in light of the Canadian Charter of Rights and Freedoms has missed an important point of engagement: whether or not the empirical claims of Charter critics are an accurate depiction of the Court’s behaviour when faced with the possibility of striking down a “majoritarian” decision. The authors set out four hypotheses and test them: (1) the Supreme Court strikes down majoritarian legislation often; (2) judicial activism is increasing over time; (3) judicial activism is largely the product of the Court’s Charter analysis under section 1; and (4) the Charter’s legislative override under section 33 has been deligitimized. Ultimately, each of the four hypotheses is contradicted by the data: the government wins the overwhelming majority of constitutional challenges brought to majoritarian decisions; judicial activism has not increased over time; the government’s success rate in the section 1 analysis is highly dependent on whether or not an internal limit is imposed on a protected right; and the level of judicial activism has not increased as a response to the deligitimaization of the section 33 override. Before the debate on the propriety of judicial activism proceeds any farther, more quantitative legal research should be conducted to determine whether or not the Court is actually activist.