The judge was critical of the Federal Court decision. “It took the right of Canadian citizens to enter Canada and transformed that into a right of Canadian citizens, wherever they might be, regardless of their conduct abroad, to return to Canada or have their government take steps to rescue them,” he wrote.
He referenced the Supreme Court’s own ruling that said interpretation should be “generous, rather than legalistic” but, at the same time, it should not “overshoot” the actual right or freedom in question. The apogee of judicial activism was probably the early years of the Harper government’s majority, when the top court made a number of decisions, including striking down three prostitution-related laws.
Justice Stratas’s ruling made clear where his sympathies lay. He said the Supreme Court’s looser approach is now discredited, in favour of narrower “doctrinal stability” that keeps the judiciary in a “predictable, appropriate lane.”
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