The Supreme Court on Trial, Revised edition

Judicial Activism or Democratic Dialogue


Shortlisted for the 2002 Donner Prize

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.


"[The courts'] dilemma has been how to reconcile their new role as active guardians of fundamental values with the democratic values and traditions of Canadian society.... ...An excellent and sophisticated guide to this continuing challenge is offered by Kent Roach in The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Irwin Law, 2001).... Roach puts forward a balanced approach that insists that activism is less about whether judges rely on political preferences at all and more about the sources of such values and the extent to which they rely on them."

Allan Hutchinson, "Charting a New Course," The Globe and Mail, April 14, 2007

Table of Contents

Preface to the First Edition
Preface to the Revised Edition

Part One: What is Judicial Activism?
Chapter One: The Supreme Court on Trial
Chapter Two: The Endless American Debate
Chapter Three: Judicial Activism before the Charter
Chapter Four: The Charter’s Influential Response to Judicial Activism
Chapter Five: An American Debate Comes to Canada
Chapter Six: Four Dimensions of Judicial Activism

Part Two: The Extent of Judicial Activism
Chapter Seven: The Constrained Creativity of Judicial Law Making
Chapter Eight: The Limits of Public Law Adjudication
Chapter Nine: Judicial Acceptance of Limits on Rights
Chapter Ten: Dialogue between Courts and Legislatures

Part Three: Beyond Judicial Activism
Chapter Eleven: The Myths of Judicial Activism
Chapter Twelve: The Myths of Right Answers
Chapter Thirteen: Democratic Dialogue in Theory
Chapter Fourteen: Democratic Dialogue in Practice
Chapter Fifteen: Judicial Activism and Democratic Dialogue
Chapter Sixteen: Dialogue in Practice: 2001–2016
Chapter Seventeen: Dialogue in Theory: A Response to Critics


Of interest...