In his application, Justice Rowe asks "Should the Court lead or mirror a shared sense of Justice?" and answers his own question by saying that "it should lead when the time is ripe to do so." His answer echoes the recent decision of Madam Justice Rosalie Abella in the Saskatchewan Federation of Labour case, where she and four colleagues invented for the first time in Canadian history a constitutional "right" to strike.
Our politicians are, many of them, a sorry lot, even some I have voted for. Most people would agree with me that this is so, though not on the specifics: what governments have got wrong; what they should be doing; who are the political duds and which politicians deserve some respect. That’s what we should be talking about. Not some imagined crisis of democracy or, to put it less dramatically, democratic deficit.
When Pierre Trudeau introduced individual rights in 1968, I supported it, although I was one of the many who predicted that the Charter of Rights and Freedoms, adopted in 1982, would turn our judges into chronic and often idiosyncratic meddlers in almost every aspect of life. The recent Supreme Court of Canada judgments have confirmed this widespread fear, which is amplified by the Harper government’s aversion to contentious non-fiscal issues. In this legislative vacuum, courts, usually with feckless glee, interpret generally formulated rights according to their own tastes in social policy or the state of current opinion. Our bench, as my distinguished colleague George Jonas wrote several years ago, is “the zeitgeist in robes.”
Ill conceived legislation on public policy driven from either the left or the right can be democratically repealed by the electorate. Judicial decisions on matters of public policy become precedent that can last a life-time.
The Fathers of Confederation intended Parliament to be the cornerstone of a broad, inclusive union, a concrete manifestation of our national identity. But now, driven by unelected judges, narrow-minded interest groups, 'gotcha' journalism and its own powerful officers, it is an institution in crisis.
In 25 years in journalism and politics, I have never before heard the argument that civil servants should be hired as a way to even out the differences between rich and poor
The Court shows scant respect for its predecessors in the last 20 years. In the first years after 1982 the Court stumbled about trying to make sense of its new powers. At every opportunity for fifteen years or more the Court has striven to find a right in the Charter that would extend its free supervision of government action under Section 1. Once it finds a right it will tell governments what they must not or must do. A natural pursuit of power the trend is also profoundly stupid. The Court because of its institutional nature and procedures, as much as from the human frailty of its nine members and its irresponsibility, is incapable of governing the country. Yet still it tries.Whoever may be right about the particular issue, the readiness of the Court to overrule itself presents constitutional law in a slow flux. The Court in the next 20s may show no more respect for the McLachlin court than it shows for the Dickson court. There is an implication that constitutional law is a progressive science with new discoveries regularly made. But chiefly the Court's reasons show conceit. It thinks it has got smarter. In fact it is getting stupider.
"It was all there under the camera lights. Technically, anybody could have written the report." The respected judge was speaking as an educated bystander who concluded the report will be obvious to anybody who followed nine months of public hearings in which Liberal insiders and their friends gave damning testimony about how the sponsorship program was mismanaged.
Liberal Justice Minister Irwin Cotler revealed recently that his department compiles "jurisprudential profiles" of judges -- their legal backgrounds -- to help him in his informal search for candidates to fill positions that are considered among the most important in the country. But the Justice Department has rejected a request to release the documents under federal access-to-information laws, saying the profiles are protected "cabinet confidences." Profiles of both past and present candidates were denied.
When Canada's Charter era dawned in 1983, Eugene Forsey, the country's pre-eminent constitutional authority, warned that the Charter of Rights and Freedoms would provide "a field day for crackpots ... a headache for judges ... and a gold mine for lawyers."