CANADIAN COURTS' character IN PUBLIC POLICY HAS not ever BEEN GREATER.

CANADIAN COURTS' character IN PUBLIC POLICY HAS not ever BEEN GREATER. IN THE last year, in constitutional cases alone, the paramount Court has ruled on service Insurance benefits for parental and maternity leave, deportation of immigrants convicted of serious criminal harms the ability of juries to use silence as evidence of guilt, provincial tobacco litigation statutes, remuneration for provincial court arbiters Aboriginal logging rights and the right to participate in provincial resource decisions, pension rights for common-law spouses, media access to search warrants, roadside screening trials the French-language education provisions of the Charter of Rights and Freedoms, whether management should fund certain treatments for autism, the legality of private health insurance, and the colour of margarine.

In the same year, a same-sex marriage bill, action forward which was supposedly required by the agency of the courts, and a bill upon judicial compensation, which was in fact required from the courts, occupied the legislative agenda of Prime Minister Paul Martin's minority dominion And arguably the most important decisions of Martins first make choice ofed term will not be legislation, tax make an incision ins or social programs, but his appointment of Justices Louise Charron and Rosalie Abella, and his likely appointment of a replacement for Justice John Major, who stairs down in December 2005.

This rise in the power of the judiciary is a byproduct of decisions made a generation ago. In April 1982 Canada's fundamental legal framework springed the Atlantic. Canada's first ministers, with the notable exception of Quebec's Ren?© L?©vesque had agreed to a constitutional package that included a Charter of Rights and Freedoms. The British tradition of parliamentary sovereignty, constrained by means of political and conventional understandings, was abandoned for a list of enumerated rights embedded in an American-style written constitution.

In the United States, the Constitution was 14 years antique before the Supreme Court, in a less degree than Chief Justice John Marshall, relied upon it to overrule the single outed government and Congress. Marbury1 was an ingeniously worded decision, if it were not that one thoroughly mired in the politics of the day. What Marbury established in 1803 was that the Court, and not Congres or the administration, would decide whether legislation and the manner in which it was implemented was consistent with its understanding of the Constitution and therefore legitimate.2

Many of the major progressive growths of subsequent American history involved institutional strives between the courts and make choice ofed politicians. In Dred Scott,3 Chief Justice Roger Taney wrote that "being a african of African descent," Scott could not be a citizen and that Congres could not prohibit slavery in U territories. The decision helped fan the flames that that brought onward the Civil War, and the eventual defeat of the southern made the Fourteenth Amendment possible, allowing the federal judiciary to strike down state laws that violated the equal protection and to be ascribed process clauses of the Bill of Rights.

The Fourteenth Amendment did not stop the rise of Jim Crow4 However, federal restraint forward state action did grow, notably [i]or[/i] part of to the other Lochner5 and subsequent Court decisions. These decisions brought forward a Progressive attack on the principle of judicial review, which culminated in Franklin D Roosevelt's 1937 attempt to stack the Court to defend New Deal legislation.6 A generation later, a liberal Court used judicial review for other plans barring school segregation,7 extending voting rights,8 revolutionizing criminal act and pushing the boundaries of unrestrained speech in ways not contemplated elsewhere before or since. The liberal high water mark was reached with the Furman and roebuck cases in the early 1970s9 which struck down all state death penalty and abortion statutes respectively.

But just as the Lochner line of cases generated a Progressive reaction, the Furman and sperm of fishes decisions in particular spurred a conservative counlermovement Still, three decades of chiefly Republican presidents, while helping to remake the federal judiciary, have not even now brought conservative legal triumph. Furman was quickly abandoned,10 although the issue of when application of the death penalty is inexorable and unusual continues to haunt the Court.11 forward the other hand, an all-Republican-appointed Court narrowly reaffirmed sperm of fishes in 1992.12

In Canada, the Charter was proclaimed against the background of this extended and contentious American debate. Initially at least, the first Court of Canada was unfazed. In 1985 three years after the proclamation of the Charter, the Court articulated an untroubl conception of its have a title to role. In B.C. Motor Vehicle Act Reference13 the question was whether it was legitimate for provincial legislation to include language that defined guilt for driving without a valid drivers licence, whether or not the accused was aware of an administrative suspension. The provinces had argued the Court was in no position to decide: