Thanks to Ben Mulroney for having me on the Ben Mulroney Show to discuss the state of our courts. Judicial activism is indeed a problem. Beyond the newsworthy cases of the day, courts have become more activist in key areas of law over a long period of time. They do so when they usurp the role of the legislature, veering into the realm of policymaking by the nature of their decisions.

The reasonable hypothetical offender doctrine developed in R v Nur allows courts to strike down laws on the basis of a set of facts not before them.

R v Oakes gave courts the power to weigh the trade-offs between individual rights and collective goals. The proportionality test developed requires policy balancing where judges assess empirical evidence, effectiveness, and the reasonableness of policy design – things that are effectively legislative functions.

BC Motor Vehicle expanded the meaning of ‘fundamental justice’ beyond procedural questions of due process and fairness to include substantive moral content, where laws would now be assessed for their arbitrariness, overbreadth, or gross disproportionality – all without a textually-based mandate to do so.

Mark Mancini, Geoffrey Sigalet and co., will be shedding light on these issues and more through Macdonald-Laurier Institute’s landmark cases council and judicial foundations project.

https://bit.ly/4nTzAOe