Dwight Newman on defining judicial activism

From the floor of the Manning Networking Conference, a conversation inspired by recent decisions of the Supreme Court


Dwight Newman is a law professor at the University of Saskatchewan and the Canada Research Chair in Indigenous Rights in Constitutional and International Law.

Maclean’s associate editor Aaron Wherry talks to him about the idea of judicial activism and the discussion that has been revived by recent decisions of the Supreme Court.


Preston Manning on the state of conservatism 

Unexpected ideas pop up as conservatives gather 

Tax experts square of at the Manning Networking Conference 



Dwight Newman on defining judicial activism

  1. I find it amusing that he talks about discussion and debate given his party’s constant shutting down or limiting debate in the HoC, or burying change in omnibus bills. The CPC is as anti-democratic a political party as I’ve ever seen.

    • I find it amusing that your takeaway having listened to this, assuming you did, is that it provides more fodder to slag the government, rather than activist judges. Listen to the last minute again, where Prof. Newman carefully and clearly explains how one particular govt. policy option to deal with end-of-life suffering – a national palliative care strategy – is probably no longer possible because of the SCC meddling – yet again – in the social policy realm. I do concur that anti-democracy increasingly plagues the nation, but you’re hatred of the current PM has deluded you as to the source.

      • I listened to what he is saying. I happen to think this one falls into the area of being called judicial activism because he disagrees with the outcome.

        I read the judgment; have you? The SCC deliberately gave a very narrow definition of when they think the current law infringes on Charter rights. The section is being struck down because it infringes on those rights; that doesn’t mean the law can’t easily be rewritten to disallow assisted suicide except for the very few instances this decision would cover. It isn’t really throwing out precedent, as some have argued; new arguments were made on a different set of facts. “Similar” is not “the same”.

        This is only a “baby with the bath water” situation if Parliament fails to act. As to the wider issue of the CPC losing in front of the courts: Maybe if they would either listen to their lawyers’ advice (or fire the current ones if they are in fact following the proffered advice) they wouldn’t find themselves in the position of having their laws and appointments tossed. I’m not a lawyer but I saw the outcome of most of those right from the outset.

        As to anti-democratic behaviour generally: My previous argument stands. This government has been the most anti-democratic Canadian government in my lifetime. It goes out of its way to suppress votes and hinder fair electoral processes; to hide information from opposition and the public; to bury changes to laws so the public is unaware of the nature and scope of the changes being made; and to limit debate and discussion. And now it wants to spy on the nation.

        So yes it is amusing to hear conservatives describe others as impeding democracy when they work so hard at subverting it themselves.

        • No more amusing that armchair lawyers casting aspersions on actual legal scholars. You have a curious concept of “precedent” and what constitutes, or not, the “throwing out (of) precedent”.

          Let’s make this simple for the viewers at home: the SCC decided the express Charter “right to life” actually included a “right to invite others to help end life”. This apparently, however, isn’t throwing out the precedent of “anyone who helps end another’s life” is subject to sanction, usually criminal, that exists to try to dissuade people from ending another person’s life.

          The good professor points out something I don’t believe to be contentious – that the impetus for seeking someone to assist one’s suicide derives primarily from the suffering that often accompanies terminal conditions – and suggests that other policy options that might have been considered to address the problem of end-of-life suffering, have been rendered moot in the munificence of the SCC’s reasoning, which is rooted in such bedrock, black and white, non-contentious legal concepts as “consent”, “competency”, “grievous and irremediable”.

          Let’s consider just one of these clear, unambiguous precepts which allow one to snuff out another without fear of sanction – “irremediable”. The SCC clearly thinks medical science to be unequivocally settled as of February, 2015 and every physician deemed to have complete knowledge of every advance in treatment. Thus is it possible to consider a medical condition to be “irremediable” and a physician, accordingly, off the hook legally if s/he puts Mr. Smith out of his misery, notwithstanding last month’s New England Journal of Medicine, which the good doctor hasn’t had time yet to read, describes the cure.

          Anyhow, don’t let these and other misgivings about physician-assisted suicide by other rabid reactionaries like the Canadian Medical Association stand in the way of another good Harper is evil incarnate rant.

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