Power of the Canadian Supreme Court
The Canadian Supreme Court has seen an expansion of power that increased its scope and influence over society. Over the last three decades, the political and public influence of the Court has increased dramatically. Today, the Supreme Court has the right to decide on issues regarding equality rights, thus making judgments on behaviors and policies of other entities that influence the balance of power within Canadian politics and social life.
The growth of power seen in the hands of the Canadian Supreme Court has allowed it to extend its reach into greater political realms. Essentially, the evolving notion of judicial review within the court system has come to be a powerful force in deciding elements within Canadian society, despite the fact that unlike the United States, Canada does not have a single constitutional document that would serve as the foundation for traditional judicial review (Haworth, 2014). Instead, Canada’s Constitution “includes a great many statutes, , and judicial decisions that interpret these documents. In addition, there are informal rules, called constitutional conventions, that regulate how our political actors behave. Finally, there are some traditions and customs that may not be obligatory but are followed” (, 2013). The Supreme Court has witnessed increasing power of judicial review in ensuring that laws and policies adhere to these collective documents and traditions that make up the notion of the Canadian Constitution. Moreover, the increasing power of the Canadian Supreme Court also extends into foreign policy decisions (Library of Congress, 2015). Just last year in 2015, the Court also ruled in favor of allowing workers to unionize and use collective bargaining as a basic right, influencing labor politics in Canadian society (Bolte, 2015). Judges can involve themselves in judging political processes and foreign policy decisions in a new environment where the Canadian Supreme Court has drastically increased its influence and power.
As the Canadian Supreme Court took a more devoted stance to protecting equality, its power over public policy grew. This expansion has also occurred into the policy-oriented political realm, especially with decisions made under the Charter of Rights and Freedoms, which has “greatly enhanced the power of the courts to influence and decide important and controversial issues of public policy” (Sharpe, 2003). The charter was passed in 1982 as a way to allow Canadian courts to make judgments in order to protect human rights and equality for all Canadian citizens (Haworth, 2014). This became a single document that could stand as the foundation for ensuring basic rights for Canadians (L’Huereux-Dube, 2003). The charter helped the Court increase its power over a number of public policy issues, including “police powers, women’s and reproductive rights, recognition for gay and lesbian relationships, linguistic and aboriginal rights, and to what is sometimes called judicial activism” (Schwartz, 2012). Under this notion, the Supreme Court recently decided in favor of same-sex marriage, making a huge policy adjustment that influences the way Canadians can interact with each other on a very intimate level. According to the research, in 2005, Canada “enacted the Civil Marriage Act, which legalizes same-sex marriage” (Hogg, 2005). This is clearly an example of the Court using policy-based decisions in order to impact the every day lives of millions of Canadians, thus extending its influence on the day-to-day behaviors and rituals of Canadian citizens through such policy decisions. Again, this can be traced back to the increasing power of the Court through the Charter of Rights and Freedoms, which is meant to protect basic human rights at the hands and decision making of the Court (Historica Canada, 2015).
Still, there are some who believe that the increasing power being given to judges in Canadian courts is becoming too much. From this perspective, people believe that the charter essentially takes away power from politicians, making them less influential. Here, Hushcroft states that “what changed with passage of the Charter was that rights and freedoms were , and judges were given the power to strike down laws that infringed on them” (Hushcroft, 2012). Thus, there are many who believe that judges have too much power and influence, which can be disruptive to the rest of the political system.
Bolte, Chaz. (2015). “In Historic Moment, Canadian Supreme Court Rules in Favor of Collective Bargaining Protections.” The We Party. Web. http://wepartypatriots.com/wp/2015/01/23/in-historic-moment-canadian-supreme-court-rules-in-favor-of-collective-barganing-protections/
Haworth, Peter. (2014). “Judicial Review, Charter Politics, and Federalism in Canada: The American Influences.” Nomocracy in Politics. Web. http://nomocracyinpolitics.com/2014/03/05/judicial-review-charter-politics-and-federalism-in-canada-the-american-influences-part-1-by-ivan-jankovic/
Historica Canada. (2015). “Supreme Court of Canada.” The Canadian Encyclopedia. Web. http://www.thecanadianencyclopedia.ca/en/article/supreme-court-of-canada/
Hogg, Peter W. (2005). “Canada: The Constitution and Same-Sex Marriage.” International Journal of Constitutional Law. Web. http://icon.oxfordjournals.org/content/4/4/712.full
Hushcroft, Grant. (2012). “Yes, The Charter of Rights Has Given Judges Too Much Power.” The Globe and Mail. Web. http://www.theglobeandmail.com/opinion/yes-the-charter-of-rights-has-given-judges-too-much-power/article4101032/
Nelson Education. (2013). “The Constitution of Canada.” Political Science. Web. http://www.nelson.com/common/polisci/constitution.html
L’Heureux-Dube, Claire. (2003). “Realizing Equality in the Twentieth Century: The Role of the Supreme Court of Canada in Comparative Perspective.” Oxford University Press. Web. http://icon.oxfordjournals.org/content/1/1/35.full.pdf
Library of Congress. (2015). “The Impact of Foreign Law on Domestic Judgments: Canada.” Legal Reports. Web. http://www.loc.gov/law/help/domestic-judgment/canada.php
Schwartzs, Daniel. (2012). “6 Big Changes the Charter of Rights Has Brought.” CBC News Canada. Web. http://www.cbc.ca/news/canada/6-big-changes-the-charter-of-rights-has-brought-1.1244758
Sharpe, Robert J. (2003). “The Supreme Court of Canada in Changing Times.” Ontario Justice Education Network. Web. http://ojen..ca/files/sites/default/files/resources/Supreme%20Court%20of%20Canada%20in%20Changing%20Times.pdf