LAWS 2502 Lecture Notes - Lecture 7: Bertha Wilson, Judicial Restraint, Mootness
8 Apr 2015
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9 (f), p. 191 the court claims that generous/liberal/flexible (not legalistic or rigid) means purposive (and is) capable of growth over time (not restrictive and not doubtful of its legitimacy: contextual (canadian term, non-interpretivist (us term) There are two main approaches: (a) interpretivism (textual) (terms preferred in america) (b) non-interpretivism (contextual) (terms preferred in canada) Irwin toy v. que. (p. 186: scc held: impugned law was justified under s. 1 and therefore upheld, n. b. : case concerned a quebec law, which prohibited advertising aimed at children. Mcintyre j. (who in morgentaler (#2)) (1988) (p. 190) had preached judicial restraint, here (irwin) favoured judicial activism in his dissent (strike this anti-business law down) All judges have to apply and interpret law/text. Non-interpretivist/contextual: liberal-generous (rights/freedoms) = not tied too close to the text/law or to legislators policy/value choices. Judges find principles in the societal context (or in their reason see j. h. Courts are the final/authoritative expositors of law for all branches.
