Canada's ambitious court becoming too meddlesome: Judicial arrogance border on monarchical

Wednesday 19 November 2003
p. A17

Are there to be no limits to judicial ambition in Canada?

The Charter of Rights and Freedoms dramatically expanded the role of judges, of course. It transformed them from adjudicators of what the law meant, into lawmakers -- unelected lawmakers.

The charter tipped the balance of a fairly even relationship between the courts and Parliament dramatically in favour of the courts.

Following the adoption of the charter in the early 1980s, the courts started off slowly enough -- poking a nose in tentatively here, a place they had earlier feared to tread, nibbling away a tiny bit of parliamentary authority there.

Back then, when a court, and especially the Supreme Court of Canada, did venture into unfamiliar territory, it spent a great deal of time rationalizing its decision in long, strongly argued opinions. Then it moved in tiny increments and with some apparent reluctance.

But no longer.
Within a decade of the charter's adoption, courts generally became more comfortable taking an activist role in Canadian society. Judges appropriated to themselves the right to "read in" constitutional rights for special-interest groups -- rights which were never intended by the authors of the charter.

In some cases, judges even read in rights which had been specifically and repeatedly excluded from the Charter of Rights and Freedoms by the people's elected representatives.

Then judges began to quote their own rulings far more often. Instead of citing as precedent for controversial rulings, mostly decisions made by earlier courts, justices, particularly at the Supreme Court, began quoting their own earlier rulings more and more often.

In short, they increasingly insisted that their decisions were justified because they had said similar things. They became their own favourite legal authorities.

By this method, the Supreme Court adopted a broad and feminist -- read anti-male -- definition of rape, for instance. The definition makes it very difficult for an accused's lawyer to offer a full criminal defence. As a justification for imposing this new definition, the court relied mostly on a couple of earlier decisions by the same justice who penned the new definition.

Now, in the past two weeks, some justices have signalled they want to go further still.

In the case of Doucet-Boudreau vs. Nova Scotia (Minister of Education), the Supreme Court overstepped the bounds of judicial authority. In a 5-4 ruling, the majority, including Chief Justice Beverly McLaughlin, decreed that judges may now not only overturn laws based on whether they are constitutional, or not. Henceforth, judges may also demand that governments report to them, regularly, on progress being made toward complying with those rulings.

The court demolished the ancient rule that a judge's interest in a case ends with his or her ruling. If there are issues about one party's or the other's compliance with a ruling, those issues are to be brought back to court in separate actions or motions.

Not any longer, though. Judges are now free to set themselves up, in effect, as the chief administrators of public programs, directing what construction shall be undertaken, or which policies implemented, or, worst of all, what tax monies are to be spent complying with their edicts.
It's a power that borders on the monarchical.
As if to add insult to injury, the Supreme Court ruled on 

Doucet-Boudreau, even though the case was moot -- another activist practice judges are increasingly engaging in.

Doucet-Boudreau involved the construction of minority-language schools for French students in Nova Scotia. Francophone parents argued that their culture was dying because the Nova Scotia government was not building schools fast enough. The trial judge agreed and took the extraordinary additional step of ordering the provincial government to report to him periodically on their construction plans.

But by the time the case reached the Supreme Court, the schools had been built.
In an earlier, more judicially sensible time, the justices in Ottawa would have refused to hear the case. The facts were no longer current; the damage had been repaired. Only a meddlesome court would still feel the need to pontificate, and that is exactly what Canada has -- a very meddlesome Supreme Court.

No sense passing up an opportunity to expand judicial power.
Now along comes former chief justice Antonio Lamer, who earlier this week told CanWest News the Canadian court should have the power to reopen old cases and change the rulings because "society has evolved."
Many earlier judgments, "even my own," Lamer said, are "outdated." They are "obsolete," so judges should be able to rewrite them, whether or not there is a case before them.
The pace of appeals and new constitutional challenges is nearly blinding already.

Ottawa seeks out activist lobbies from natives to feminists and gays to visible minorities, then funds them generously to hunt up test cases and bring those cases to court. This way, federal politicians hope the courts will enshrine controversial new rights the politicians desire, but are too afraid to grant.
But even this dizzying pace is not fast enough for Lamer. No longer should judges have to wait for cases to come before them, even moot ones. If anyone listens to Lamer, judges will be able to reopen cases and rewrite the decisions -- and the law -- on their whim. No need to wait for all those legal niceties.

The arrogance is appalling._______________________

Lorne Gunter Columnist, 

Edmonton Journal Editorial Board Member, National Post

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