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Abstract

Jurists are trained to value the rule of law and judges are expected to uphold same whatever the circumstances. Separation of powers controls interactions of the legislative, executive and judicial branches, creating potential for friction where the legality or legitimacy of state action is at stake. The real test of judicial independence comes in situations of crisis. Judges are not professional philosophers or politicians. Still, on a day to day basis, judges are called upon to make tough decisions that have dire consequences on a human level, which undoubtedly engages a judge’s conscience. Changing values shape the face of justice; and with the rise of populism, the role of the judiciary in a democracy has become a major topic of discussion. Detractors of judicial activism dismiss such elitist thinking particularly as it is expressed by unelected members of the judiciary. Proponents of judicial activism reply that judicial restraint has no place where fundamental rights and freedoms are threatened.

The author has been a judge with the Federal Court of Canada since 2002. In this essay, he proposes a redefinition of judicial restraint and activism. Judicial courage better describes the reality of judicial intervention which is far from being unidimensional. Faced with two opposite views of judicial courage, and naturally inclined to follow a liberal one—according to which courage, virtue and integrity are tightly intertwined—the author also tests a conservative duty-based approach centered on rules and precedents. Throughout a historical journey, tackling with ethical challenges shaping the face of today’s justice, a judge tries to find his own existential meaning. In the end, the author concludes that the true essence of justice lies in the judge’s capacity to value persons in their humanity while keeping the rule of law at the center of his or her judicial life.

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