The Power of Canadian Courts

By C. Gwendolyn Landolt

National Vice President

REAL Women of Canada

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In no other country in the western world do judges have power comparable to that now held by Canadian judges. The latters’ appointments to the courts are made solely by the Prime Minister, without being either screened or scrutinized.

Contrary to popular belief, most of this remarkable power now held by our 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 have enabled them to determine public policy issues, which was formerly a matter for Parliament only.

The Charter does provide in S.24 that the courts may provide “such remedies as the courts consider appropriate and just in the circumstances.” This provision does not provide, however, that judges may take legislation and ‘write in’ or ‘write out’ words at will. Rather, the courts have assumed this prerogative for themselves, frequently, in doing so, ignoring the purpose and intent of the legislation passed by the elected legislators.

The Canadian courts have broadened their powers to such an extent that they now have become a second legislature, reducing the elected Parliament to a mere secondary role in the political process.

Perhaps the most important Charter decision to expand the courts’ power to interpret the Charter at will 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 our democratic society. Unfortunately, the effect of the Oakes decision was to give the court a free hand to second-guess government policies.

The courts’ powers were further widened in Reference re Provincial and Electoral Boundaries (Saskatchewan, 1991), in which the Supreme Court of Canada pronounced a new doctrine which provided that our Constitution was not static, but was 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.

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 which using the “living tree” argument, 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 courts 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 feelings. This is an extraordinary criterion for courts to use and has given courts 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.

The truth is that judges do not have special or secret knowledge with which to interpret the general and ill‑defined words in the Charter of Rights. Instead, judges come to the bench with their own political and ideological axes to grind, and are now eagerly shaping public policy issues, with impunity, without the slightest deference to Parliament.

The courts, however, should not determine public policy because they are not set up to carry out this important function. Unlike Parliament, courts do not have access to the social facts of the issues before them; they do not have the luxury of time to adequately reflect on the issue; they do not have access to research facilities as do Parliamentarians; and they do not have access to the practical experiences of the public on issues which are growing increasingly complex, economically, socially and scientifically. Nor are the courts equipped to evaluate the full range of policy alternatives which are available to the government. As a consequence, it is not possible for the courts to entirely grasp the long-range implications and ramifications of the arguments placed before them by the litigants.

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.