Judicial Rule National Post

JUDICIAL RULE

National Post

Saturday, November 08, 2003

Not content merely with their recent, self-granted role as lawmakers, Canada's judges have now also appropriated to themselves the authority to supervise the performance of Cabinet ministers and elected governments, and even to micromanage public projects they feel run contrary to their judicial rulings. Thursday, the Supreme Court of Canada declared that judges need not limit themselves to declaring laws constitutional, or not, and prescribing remedies for the victims of unconstitutional ones. Henceforth, judges may also compel governments to report periodically on the actions they are taking to comply with constitutional rulings and to order changes in those actions when the judges are dissatisfied. The ruling clearly oversteps the bounds of judicial authority by trampling 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 that ruling, those are to be brought back to court in a separate action. As such, the court's ruling in Doucet-Boudreau v. Nova Scotia (Minister of Education) violates the separation of powers between the judicial, legislative and executive branches of government, marks a dangerous intrusion into the political sphere and potentially imperils our traditions of responsible government.

The majority decision in the 5-4 ruling is bizarrely argued. The five Justices who voted in favour -- including Chief Justice Beverly McLachlin -- insisted that to not give judges these new powers was to invite the "seeds of tyranny to take root." They meant that when governments fail to comply with ordered remedies, governments are behaving tyrannically by flouting the rule of law. Yet there is a much greater danger of tyranny when judges impose themselves in the administration of public programs. Unlike legislators and Cabinet ministers, judges are unelected. They rule by decree, not by public debate, and their decisions are not subject to review by electors. It is topsy-turvy logic to argue that this decision, somehow, will lead to less tyranny rather than more.

The Supreme Court also insisted on ruling even though Doucet-Boudreau had become a moot case. Francophone parents in Nova Scotia brought the original case because, in their view, the provincial government was unduly slow in building the French-only schools demanded by the Constitution "where numbers warrant." The initial trial judge ordered the schools built, then took the unheard of extra step of demanding the Nova Scotia government report to him regularly on the construction because of its "lengthy history of government inaction." But between his ruling and the Supreme Court's, sufficient schools had been built to satisfy the plaintiffs.

Agreeing to rule on moot cases is almost as dangerous a precedent as judges granting themselves new powers that exceed their competence. The court's haste belies an impatience to expand judicial supremacy. Besides, if the legislature moved to ensure the required schools were built before the court process could run its course, that would demonstrate it was at least as capable of satisfying constitutional decrees from judges as the judges themselves would be if they used their newfound authority to oversee public projects.

The minority on the court (whose dissent is excerpted below) also pointed out that the trial judge's "reporting order" was so confusing it confused even him. The government did not know whether it was to make formal written reports at regular intervals, or merely occasional oral presentations. Nor could it know when it had discharged its obligations, a violation of a defendant's right to due and fair process.

The majority ruling oversteps the bounds of judicial competence, in a moot case, on a court order that was badly drafted in the first place. It is hard not to conclude that the Justices were just itching to intrude further into the political sphere, and took the first opportunity that came along to do so, good case or not.

Short of a constitutional amendment severely limiting such vaulting judicial ambition, all that may be left to the country's legislators is recourse to the Charter's notwithstanding clause. We do not favour the wholesale invocation of the notwithstanding clause, but if our elected lawmakers are not to be wholly usurped by judges, what else is there for them to do?