We should not be shocked that even within the courts, the judges can reach different conclusions. For example, a case in Alberta made its way to the Supreme Court of Canada. Hutterian Brethrens challenged a provincial regulation that required them to have photo identification on their driver’s licenses. They claimed that the law infringed on their religious belief. The SCC justices were split about whether the provincial law’s requirement for photos justified the violation of their religious freedoms. The majority of the court decided that the law was justified because the negative effect on religious freedom of the Hutterian colony members did not outweigh the benefits of the security and the integrity of the driver’s licensing system. However, two justices found the harm to the rights of the religious group, and stated that the impact was not on just their belief system but also on the life of the community and their religious lifestyle. Therefore, this shows an understanding that the Charter cases often require judges to weigh-in on social issues, something that the courts have been criticized for.
In sum, both of the cases above illustrate how the charter changed the role of judges where they bear the responsibility to interoperate the charter. Due to the charter, judges now have a bigger role in the constitution. This means judges have more power and responsibility by force than before, when it was only the BNA act in motion.
Although judges bear more responsibility now than before, judges are appointed and not picked randomly. Judges are chosen based on a number of factors and are picked to maintain the trust of the people. In sum the Supreme Court of Canada has nine judges that includes the Chief Justice of Canada. The Governor in Council appoints them and all of the judges must have been either a judge of a superior court or a member with at least ten years of experience with the province or territory. Furthermore, judges stay within the office till the age of seventy-five or earlier if they choose to retire (Kent, 2016). Judges can also be removed if found causing misconduct. This is important to understand because, despite the fact that judges do hold power in the palm of their hands, they are not picked randomly. As stated above they require experience. Through this experience judges are picked and selected based on their skills that best fit the court. Because judges are appointed, they are chosen to make sure they do not abuse the power they are given. This means that judges must remain impartial and fair. If judges do abuse their power and cause any sort of misconduct, they will be removed from their seat. Overall, the appointment process is intended to protect the citizens and balance the power judges are given.
Another factor to consider is the notion that more power and responsibility does not mean it has to be bad. Phycology studies done by suggest that power doesn’t make a person bad but it shows their true nature (Kaufman, 2015). As mentioned earlier judges are appointed and if they cause misconduct they will be removed. Therefore, the power is not given to be bad or become bad rather, if the nature of the person with the power is bad they will be removed. Additionally, with respect to the claim that judges have too much power, many fear that power. They assert that judges act on their own will and make decisions based on their own opinion rather than following the law.
In the next section of this paper I will go into detail regarding the fact that judicial activism is not a myth and is a very real thing to add on, I will illustrate that judicial activism has been exaggerated within the courts to seem more than what it really is. In sum, by the end of this section I aim to convey that judicial activism is not as common as it seems in the courts and when it does exist its not as bad as people have portrayed.
As many have argued that the courts have too much power despite it being a result of the Charter, they state that judicial activism is what makes them so powerful. Rather than understanding the crucial and difficult role of the judges to remain impartial and interoperate the law, many seem to be threatened by judicial activism. I argue that judicial activism should not be seen as a threat and instead should be seen as an attempt by the courts to understand the society and interoperate the laws to fit the societies needs best. I would like to first define judicial activism to better understand my argument. Judicial activism refers to judicial rulings that are suspected of being based on personal opinion, rather than on existing law (Kent, 2016). Judicial activism has been a very controversial topic as many argue whether judicial activism exists or not. Retired Supreme Court of Canada Justice John Major stated, “There is no such thing as judicial activism in Canada” (Anand, 2006). Whereas many citizens or victims of the court argue that judicial activism does exist within Canada where the judges can act based on their opinions and not the written laws.
One of the major myths of judicial activism is that it did not exist prior to the charter of 1982. However judicial activism is real and existed prior to the new enactment of the charter (Anand, 2006). An example of judicial activism was evident in the case of Donoghue v. Stevenson in 1932. In this case the two women ordered a beer and one bottle contained a decomposed snail. The plaintiff alleged she suffered from shock and gastroenteritis. She sued the manufacturer as they were in breach of its contract by supplying the cafe with defective beer. However, a lower court ruled that she was not eligible to sue for damages, as she was not a party in the contract.