Author Topic: Ontario Government of Doug Ford  (Read 1790 times)

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Offline SirJohn

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Re: Ontario Government of Doug Ford
« Reply #15 on: September 12, 2018, 07:15:12 pm »
I'm surprised sometimes how people often don't understand the basic functioning of our institutions. Parliament creates the laws and judges enact them. They don't make the decisions to create the laws. And no matter what a judge decides, it can always be overridden by Parliament with new laws and even a new Constitution if necessary.

I'm going to assume you wrote that mistakenly. Parliament creates and enacts laws. Judges are only supposed to examine whether the laws are constitutional when a complaint is made.

This is the conflict between judicial activism, which prevails in Canada, and originalism or constructivism. I regard judicial activism as fundamentally undemocratic.

Strict constructivism means reading and applying the words of the law precisely as they are written. No more and no less is the intention, and the judge's role is not to interpret. Once the meaning of the text is understood, then the law is applied as such.

Judicial activism involves judges ruling in a manner in which they promote a decision based on their own political/ideological feelings and opinions toward shaping public policy. Detractors feel that this undermines legitimate and impartial judicial review, while proponents feel that legal interpretation should change with the times.

Originalism is the practice of looking at the legal framework in place ( the Constitution), and keeping in mind the purposes and intentions with which the applicable parts were written, judging in accordance (as best as can be determined) with the spirit and intention of the law as it was written. Often originalism is equated with strict constructivism, but they're not really the same exact thing.
« Last Edit: September 12, 2018, 07:22:02 pm by SirJohn »
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