The Legislature, The Executive and The Courts: The Delicate Balance of Power or Who is Running This Country Anyway?

The expanding role of Canadian courts since the introduction of the Charter has prompted critics to decry what they see as excessive and anti-democratic judicial activism. The author addresses such criticisms, responding, in particular, to the arguments of Ted Morton and Rainer Knopff. The article critiques the basic elements of Morton/Knopf\u27s thesis: that activist courts are anti-democratic, excessively political, and engaging in illegitimate law-making. Rejecting the claim that Canada\u27s judiciary is a less democratic state institution, the author notes the powerful law and policy-making role performed by the federal cabinet-for practical purposes, an unelected body. The author endorses the dialogue in which courts and legislators have engaged since 1982. This dialogue, he argues, is not only democratic, but also ensures accountability for the judiciary, the legislature, and the executive. Referring to recent Supreme Court of Canada decisions, the author suggests that critics of interventionist courts harbor a narrow and simplistic majoritarian view of democracy, rather than a more nuanced and rights-sensitive concept of enhanced democracy. Such critics also seem more displeased with the substance of activist decisions than with the legitimacy of the courts in rendering them. The author concludes that Canadian courts are performing their appropriate constitutional role, and are generally doing so effectively