There are a few institutions in the Canadian society today which are subject to intense public scrutiny than the Canadian judiciary. The aftermath of the enactment of the Canadian Charter of Rights and Freedoms saw a dramatic increase in the visibility of the law courts and the judges presiding over them. The rights and freedoms guaranteed by the Charter play a central role in the resolution of disputes by the court. They also form part of the constitutional rights of all Canadians. The members of the public have attained more awareness of the need for an independent judiciary that is able to apply the law without fear or regard to whether the decision is popular or not. Over the years, critics of court decisions most notably those recognizing the rights of same-sex marriages have accused the courts of moving beyond their traditional role as arbiters of legal disputes and into the realm of law making. In this sense, the courts are perceived as becoming political and overstepping their boundaries (Leishman, 2006). Contrary to the opinion held by critics, the judges had upheld the constitution and only stepped in to alter the law when legislatures either refused to act or acted in a manner that violated the constitution. This essay will argue that the Canadian judges have stuck to their traditional role of interpreting the law and upholding the constitution and have not become policy makers as assumed by a section of the Canadian population.
The Canadian judiciary does not have the power to make or enforce the law (Songer & Johnson, 2007). They simply act as the arbitrators and interpreters of the Canadian Law. Law making is limited to the provincial legislatures and the federal parliament. Law enforcement, on the other hand, is performed by the executive branch of the government through its police forces and bureaucracies (Kemp, 2010). The role of the court comes in after a law has been passed by the legislature. The court acts to interpret the passed laws, arbitrate disputes over the laws passed, and give direction to the executive on the best way to enforce the law. The modern Supreme Court of Canada plays a vital role in Canadian politics. It's considered the highest court of appeal. The decisions made by the Supreme Court touch on civil law and criminal law. Civil law regulates relations between people awhile criminal law governs human conduct deemed as ‘criminal.'
The Canadian courts are also responsible for adjudicating and interpreting the Canadian constitution which touches on several political issues such as Aboriginal Rights, federalism and the Canadian Charter of Rights and Freedoms. Based on this argument, the role of the Canadian judges is limited to specific responsibilities which they cannot overstep. Overstepping their boundaries would violate the constitution and undermine the position of the judiciary.