In the article, "The Media and the Courts," Madame Justice Rosalie Abella discusses how the adoption of the Canadian Charter of Rights in 1982 has affected the role of the courts. Justice Abella claims that four public opinion myths arose since the Charter, following the media’s display of them in the limelight. The myths include that courts should only interpret the law and not make it, courts have become biased, courts have become politicized, and that courts should listen more to public opinion (The Media and the Courts, pp. 22, 23). I disagree with Justice Abella that the courts have always had a law-making role because clearly the Charter has increased judicial activism and therefore, politicized the courts. However, I agree with Abella that the Charter has not made the courts biased, their primary function is still to uphold justice; and by being an independent body, the judiciary does not need to respond to unreliable fluctuating public opinion.

Justice Abella believes that it is "unrealistic to say that judges should not make law, they should only interpret it" (The Media and the Courts, p. 23). According to Abella, every interpretation made by a judge is in effect law making and the history of Criminal Law and cases before the Charter show that law-making has always been present. I disagree with Justice Abella that law-making has always been present because prior to the Charter the courts did not use their decision-making power and thus, relied on an interpretivist approach. The Bill of Rights only applied to the federal level, was not constitutionally entrenched because of parliamentary supremacy, and did not spell out the court’s role in interpreting it, therefore, law-making authority was left to parliament. The Charter, however, is constitutionally entrenched, applies to both federal and provincial levels, and judicial review is explicitly stated in section 24. Under the Bill of Rights (1960) the courts took on a self-restrained role and only nullified one statute. Contrarily, under the Charter, 55 statutes have been nullified from 1982 to 1997. Furthermore, interpreting a law does not result in a new law being created or one being nullified, it only results in a modified, more explicit law. Courts have always broadened or narrowed the scope of laws in creating precedence, but not until the Charter did the courts have the power to repetitiously nullify legislation and, therefore, create law.

Another myth that has risen, according to Justice Abella, "is that the courts, with the Charter, are becoming ‘politicized’" (The Media and the Courts, p. 25). Abella strongly urges that this is incorrect and contradicts her earlier view that courts have always been law-makers by saying that courts are still simply "reviewers and interpreters of the rules" like they were prior to the Charter. I believe that the courts have become politicized with their new role of judicial activism. With attempts to change causes into cases and cases into causes by Canadians, Charter litigation has undoubtedly become political. The courts are now making more decisions on constitutional issues than ever before and most constitutional cases involve a political component because a policy change can arise from a court’s decision. The courts now have a law-making role stemmed from non-interpretivism which was formerly only held by the legislature. As the courts’ role shifted, the political focus has now encompassed both the legislature and the courts. Section 33 of the Charter has turned Charter litigation by the courts into essential a political battle ground for the legislatures. Courts now, in turn, have a power unlike parliament that further politicizes their role. The courts’ independence from the electorate allows them to enforce minority rights and civil liberties which parliament may not have been able to do because of majority pressures. Although there are instances of strong political consequences prior to the Charter, as in the Persons Case and the Patriation Reference, Charter litigation has undeniably politicized the courts to a point far exceeding their prior political component.

Justice Abella further argues that it is essential for judges to be impartial and free from biases, however, she explains that being impartial does not mean having no presupposed opinion. As long as judges do not close their minds to the facts and arguments of a case, opinions do not lead to biases. Justice Abella also addresses the common use of the media to falsely label the courts. I completely advocate Justice Abella’s position because nowhere can one find a person without an opinion. Unless one does not have knowledge on a particular issue, by human nature he or she is bound to have an opinion on a given situation. It is how the opinion is used that is crucial; an open mind to the case is absolutely essential to preserving justice. The media correspondingly labels the courts as though they are allowing preconceptions to weigh their decision. Justice Abella remarked that, "the media is far more influential and powerful of the two…it gets to decide which pictures it wants to take" (The Media and the Courts, p. 24). Clearly the media uses its power of influence to not only make a profit, but to potentially influence the public to how it sees fit. Impartiality is of vital importance to upholding justice, yet with an open mind towards the facts, the courts can and do ignore biases.

Finally, Justice Abella draws on the myth that courts should listen more to public opinion. She emphasizes the fact that public opinion is discretionary and tends to fluctuate unreliably. Abella feels that while judges must ensure they do not listen to biased evidence such as public opinion, they are still "…accountable to the public interest for independent decision-making based on discernible principles rooted in integrity" (The Media and the Courts, p. 28). I defend Justice Abella’s assertion because I feel that the courts need to remain distinct from the legislature and public opinion. One of the court’s roles is to declare the constitutionality of a law and not whether or not the public thinks the law is acceptable. Public opinion is greatly affected by biased media perceptions, consequently it would seem that if judges were to listen more to public opinion they would essentially be listening to the media. Judges are not elected and therefore they should remain as an independent body who’s sole purpose is to uphold justice. It is fundamental that the public does not continually turn to the courts instead of parliament to advance reform because Canada is a democracy where the legislature is elected to represent the people. Thus, it follows that listening to public opinion is for the legislature and not the courts.

Charter litigation has transformed the courts into law-making bodies and in turn has resulted in their politicization. The courts were explicitly given the power of judicial review in the Charter and they choose to exercise their role with non-interpretivist decisions to uphold justice. Moreover, to uphold justice and perform a law-making role, it is essential that judges act in a neutral and impartial manner, unsusceptible to "easily swayed" public opinion. An independent body such as the court needs complete independence to rule on such constitutional issues whereas parliament may be restrained by public opinion. Most constitutional cases will result in criticism from at least one party that opposes the court’s decision, and politics will no doubt arise over the criticism. "…the democratic process is imperfect and at times fails to live up to its responsibilities to the individuals and groups it serves. …this is the reason why some form of judicial review is necessary" (Campbell, The Charter and Good Government, p. 425).