Politicians have allowed judges to usurp too much power

Canadians have never been that interested in who sits on our top court. We should be

Brian GiesbrechtLeaks from the prime minister’s office concerning the potential appointment of Justice Glenn Joyal, Chief Justice of the Manitoba Court of Queen’s Bench, to the Supreme Court of Canada highlights differences between the treatment of judiciary appointments in Canada and the United States.

Why do Canadians not pay more attention to appointments to our highest court and the impact the Charter of Rights has on our democracy?

Who sits on the U.S. Supreme Court is of crucial importance there. Americans’ ‘Supremes’ rule on the constitutionality of virtually everything important. Who is or is not appointed to their highest court can have a profound influence for decades. The most significant legacy of the administration of President Donald Trump may be a conservative Supreme Court.

Canadians have never been that interested in who sits on our top court. That’s because – until 1982 – the personal views of judges didn’t matter all that much. Their main role was to interpret laws passed by elected representatives.

This changed fundamentally when the Charter of Rights of Freedoms came into being. Now, a judge’s personal views became extremely important. Many issues formerly decided by politicians are now decided by our courts.

Judges fall generally into two camps:

  • Those who could be called conservatives believe that judges should be reluctant to become involved in matters that were formerly dealt with by the people’s elected representatives.
  • Judges in the other camp are generally more activist, or interventionist – more inclined to make new law.

An example of an activist decision was the Supreme Court’s Haida Nation case. In 2004, a decidedly activist Supreme Court literally invented a “duty to consult” Indigenous communities when development is being considered on any lands considered to be part of their “traditional territories.”

Today’s stalled pipelines and other development opportunities are a result. The Haida example of judicial activism has proved to be a job-eating monster.

Another disadvantage of having something become a court-decided constitutional right is that a court-decided right becomes constitutionally enshrined – and almost impossible to reverse. No Canadian politician will try the constitutional change route after the failures of the Meech Lake and Charlottetown accords to amend the Constitution.

Elected representatives are answerable to the electorate. Courts are not – and they’re ill-equipped to judge how much money a decision will cost Canadian taxpayers. Money is not even a main consideration for the courts.

The courts are too often thrust into a role that should be handled by elected bodies, with elected bodies more inclined to dump intractable issues into the courts. And too many judges are willing to usurp what should be a legislative function.

The Haida case is one example of the many crucially important Charter decisions that have changed many aspects of our lives.

Joyal gave a profoundly important speech on the proper role of judges in interpreting the charter at the 2017 Law and Freedom Conference (he’s in the conservative camp). He also reflected on the broader questions of how Canadians should view the Charter and how it has changed the Canadian polity. He even suggested we risk a “consequential intellectual complacency” if we don’t ask those questions.

Is the diminished role of our elected representatives a cause for concern?

Brian Giesbrecht, a retired judge, is a senior fellow at the Frontier Centre For Public Policy.


The views, opinions and positions expressed by columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of our publication.

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