Activism or democracy? Judicial review of prerogative powers and executive action

Abstract

There is ongoing concern over the appropriateness of judicial supervison over legislative and executive action in Westminster democracies. This article addresses these concerns through consideration of the judicialisation of the exercise of prerogative powers. It examines all of the judicial decisions reviewing the exercise of prerogative powers after 2001 and finds that Canadian courts have expanded their scope of review through both Charter of Rights and Freedoms and administrative law principles. Despite this fact, they remained relatively restrained, intervening where government activity has arbitrarily interfered with the rights, interests or legitimate expectations of individuals and thereby limiting judicial activism concerns.