Globe and Mail

Judicial activism is not a figment of the imagination

Judges come to complex issues trailing clouds of glory, conviction, intent, emotion and law

The Globe and Mail
Tuesday, October 26, 1999

Listening to some judges, you would think there was no substance to the public controversy over judicial activism. Judges have always filled gaps between law, principle and practice, and if they are doing more of that now, it's just because politicians require it through the Charter of Rights and Freedoms, they say. One judge is as likely as another to "make law" in a world where the courts necessarily have the last word on many contentious issues.

Last week, Mr. Justice Ian Binnie of the Supreme Court of Canada went so far as to suggest that concern for judicial activism varies with an observer's view of a court ruling: "It's a question of whether or not you agree with the decision," he told law students at the University of Ottawa.

This is all very reassuring and entirely misleading.

The Charter of Rights and Freedoms has substantially increased judges' power to strike down legislation as unconstitutional and to effectively amend it for the same reason. Judges have also undertaken expansive interpretations of aboriginal treaties, which are also recognized by the Charter.

One need only read Supreme Court judgments to see how judges bring different assumptions to the same set of facts. In the case of Delwin Vriend, for example, Mr. Justice John Major would have given Alberta a year to amend its human-rights legislation before striking it down as unconstitutional because it excluded sexual orientation as a ground of protection against discrimination. (An absence destroyed the law in this case.)

The majority chose, instead, to simply add sexual orientation to Alberta's existing law (a remedy we unwisely supported at the time). One can support the judgment in Vriend, and oppose the means by which the court implemented its views. It is not "a question of whether or not you agree with the decision," rather what balance of law-making power you see as appropriate between the legislatures and courts.

Judges cannot intellectually smother this debate by denying the distinctions.

In the recent Mi'kmaq fishing case, the dissenting judgment revealed a spirited debate within the court on how far judges should go in attributing specific rights to fish, hunt and gather to a 1760 treaty that mentioned none of these things. Where the judges stood depended on where the judges came from in their philosophy of law and society. Their views reflected their values and assessment of the courts' appropriate role in society. And that is precisely why Canadians should have a chance to learn more about nominees to our highest courts before their appointments are confirmed.

Last week, Ontario joined a growing chorus calling for a transparent and accountable process of selecting Supreme Court judges (who are now appointed on the authority of the Prime Minister alone). "Recently, decisions of the Supreme Court of Canada have increasingly shifted toward determining social and economic policy," wrote Intergovernmental Affairs Minister Norm Sterling to Justice Minister Anne McLellan. "Decisions that have such effects are not in accordance with the public's understanding of the respective roles of the legislators and the judiciary in our parliamentary and legal systems."

Appointing judges who resist aggressive extensions of judicial interpretation is one route to righting the balance.

Another, as Judge Binnie suggested (along with Preston Manning), is that legislators draft laws much more carefully to confine the discretion of courts and tribunals over the work of politicians.

Democracy presumes a proper balance between courts and legislatures. What laws are unconstitutional is for the courts to judge based on a grounded application of law, principle and common sense. What laws the courts examine are for legislatures to write -- and rewrite or reassert themselves if required.

Copyright © 1999 Globe Information Services