HOW THE COURTS IN CANADA Swept to Power

                                                                                                -by C. Gwendolyne Landolt

In no other country in the western world do judges have power comparable to that now held by Canadian judges. 

Contrary to popular belief, however, most of the remarkable power held by Canada’s appointed, unaccountable judges was not given to them under the Charter of Rights, but rather, has been greatly expanded by the judges themselves in a series of cases which enables them to determine public policy issues which was formerly the role of Parliament.  The power of the courts today is so extensive that nearly all important moral, political and cultural values affecting the lives of Canadians have been removed from democratic control by our activist judges.

The Charter provides in S.24 that the courts may provide “such remedies as the courts consider appropriate and just in the circumstances.”  This provision, however, did not provide that judges may take legislation and “write in” or “write out” words at will.  Rather, the courts assumed this prerogative all by themselves, frequently, in doing so, ignoring the purpose and intent of the legislation passed by the elected legislators.  This new judicial technique came about in 1992 in the Schachter Case.  In that case, a father claimed his equality rights were being denied because, the Unemployment Insurance Act provided different parental leave for biological and  adoptive fathers.  Chief Justice Lamer and his colleagues on the Supreme Court decided to re-write the Unemployment Insurance Act by “reading in” words that were not in the Act, thus exercising a legislative function.  By this decision, the power to make laws was effectively transferred from the elected Members of Parliament to the unelected judges.  That is, by this decision, the Court turned itself into a second legislature, reducing Parliament to a mere secondary role in the legislative process.

Perhaps an even more important Charter decision to expand the courts’ power was the Supreme Court of Canada’s 1986 decision, in Regina v. Oakes.  In that case, the Court set out the parameters by which it could determine whether laws were “justified” in a democratic society.  Unfortunately, the effect of the Oakes decision was to give the courts a free hand to second-guess government policies.

The Court’s powers were further widened in Reference re Provincial and Electoral Boundaries (Saskatchewan, 1991), in which the Supreme Court of Canada discovered a brand new doctrine, which was that our Constitution is not static, but rather, a “living tree.”  With this metaphor, the courts accorded to themselves the right to broadly change the wording and meaning of Charter provisions, and to change laws according to judges’ own philosophical and ideological views.  That is, the Charter was to grow, just like a living tree, by adding branches to the so-called “tree.”  And, it was judges who were to have the privilege of doing so 

The most recent application of the “living tree” doctrine was made by Madam Justice Louise Arbour in her minority decision in December 2002 in Attorney General, Quebec v. Gosselin.  In this case, she put forward the astonishing proposition that judges know better than legislators regarding the allocation of the scarce resources of the public purse.  This decision, dealing with welfare payments by the Quebec government, was a narrow one (4-3) and if just one other judge had moved over to Madam Justice Arbour’s line of reasoning, it would have resulted in the Quebec government having to pay hundreds of millions of taxpayers’ dollars in compensation to welfare recipients.  It is worrisome that the Supreme Court has promised to revisit this issue at a later time!

The Supreme Court of Canada’s interpretation of “equality rights” under S.15 of the Charter, is just as bizarre.  In Law v. Canada (1999), the Supreme Court held that equality rights were threatened if an individual’s “human dignity” is undermined.  In that case, the Court held that “human dignity” exists only if an individual or group feels that self-respect and self worth are present.  That is, according to the Law Case, an individual or group’s human dignity can be undermined if they feel marginalized, ignored and devalued.  This means that equality rights under S.15 of the Charter now rest on the claims of a person’s subjective feelings.  This is an extraordinary criterion for courts to use and has given them a wide opportunity to protect their favourite groups, regardless of the intent of Parliament, the plain wording of the legislation, or the views of the public.

This extraordinary power grab by the Canadian courts has occurred because there are no checks and balances on them, and the courts rightly reason that they can do whatever they please, no matter how spurious their reasoning, or how unhealthy their decisions are to democracy and society.  Only lawyers who actually read the judgements know what is going on – but they’re not going to tell since their livelihood depends upon respectful submission to the courts’ rulings.

We do not have a strong tradition of criticism of the judiciary in Canada, but in the interests of democracy, perhaps it is time we developed one.