Power without Law: The Supreme Court of Canada, the Marshall Decisions, and the Failure of Judicial Activism
42 Ottawa Law Review 181 (2010-2011)
7 Pages Posted: 25 Aug 2012
Date Written: 2010
In Power Without Law, author Alex Cameron strongly criticizes "incautious judicial activism" which allows the law to become "too malleable to personal judicial predilection."' Cameron makes his arguments primarily through an analysis of a 1999 decision of the Supreme Court of Canada, R v Marshall (No 1)," in which the majority of the Court held that Aboriginal peoples in the Maritimes have a treaty right to hunt, fish and gather, and to sell the products of these activities in order to provide themselves with a moderate livelihood. Cameron also comments on two subsequent and closely related decisions, R v Marshall (No 2) and R v Stephen Marshall; R v Bernard. He characterizes these three decisions as reflecting a worrying trend in judging: a results-based judicial activism that blurs the line between law and policy, and between the role of judges and the role of elected legislatures. Cameron sees this approach to judging as inimical to the rule of law, and thus as an exercise of power without law.
Keywords: judicial activism, R v Marshall, policy, legislatures, rule of law, power
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