Globe and Mail

Judicial activism has gone too far, court says

By KIRK MAKIN
JUSTICE REPORTER
Thursday, December 12, 2002 – Print Edition, Page A1
The Globe and Mail

One of the country's highest courts has issued an extraordinary ruling, saying judicial activism has gone too far and calling for the curtailment of judges' powers to second-guess politicians and overturn laws.

In a 3-0 ruling seen as a direct challenge to the Supreme Court of Canada, the Newfoundland Court of Appeal warns of potentially widespread unrest arising from "undue incursions by the judiciary into the policy domain of the elected branches of government."

The Newfoundland judges urged the Supreme Court to revamp the Oakes test, which has been used since 1986 as a template by judges deciding whether laws that violate the Charter of Rights can otherwise be justified.

The court said the separation of powers between legislatures and the judiciary was forged "in bloodshed," a historical reality that has been forgotten as contemporary judges tinker with legislation.

Criticism of this judicial activism is growing, and "despite protestations to the contrary, it has to be acknowledged that there is an air of legitimacy to many of these complaints," the court said.

"The lessons of history accentuate the perils of revesting ultimate decisions over policy in institutions controlled by persons without elective mandates to make such decisions."

Constitutional expert David Stratas said yesterday that it is virtually unheard of for a lower court to challenge the Supreme Court over its chosen direction -- particularly on such a bedrock issue.

"This decision has enormous implications," Mr. Stratas said in an interview. "They are calling for a re-examination of the core of the Supreme Court's jurisprudence under the Charter. I've seen nothing like this from any judge -- let alone a unanimous appeal court."

The 169-page judgment -- written by Mr. Justice William Marshall and concurred with by Mr. Justice Geoffrey Steele and Mr. Justice Denis Roberts -- took 23 months to produce. It centred on a court challenge launched nine years ago by a union representing female health-care workers.

The women had been granted retroactive pay equity totalling about $24-million to cover the years 1988 to 1991. However, when the province suddenly found itself mired in a serious recession with a deficit projected at $200-million, it promptly delayed compensation payments and rescheduled them over a period of several years.

The union took the province to court, claiming that its action amounted to a violation of the women's Charter equality rights.

The appeal court upheld the provincial government's decision, and questioned the test set up by the Supreme Court to judge whether a law can be justified even though it violates the Charter of Rights.

The three-pronged Oakes test involves assessing the goals of the legislation and determining:

Whether there is a pressing and substantial need for it;

Whether the means to achieve the legislative goal are fair, proportionate and rationally connected to it;

Whether the law infringes Charter rights as minimally as possible.

"There is a need to revisit those three gateways to proportionality and, if not to completely reframe them, at least to oil their hinges to assure they swing in harmony with the separation of powers," the Newfoundland Court of Appeal urged.

Mr. Stratas said it will be difficult for the Supreme Court not to react to the gauntlet the Newfoundland court has thrown down. "The decision will be seen as extremely provocative by some of the judges up there," he said. "I think it will prompt a debate on how far the courts can go in second-guessing government policy under Section 1."

To further complicate matters, a recent B.C. Court of Appeal ruling instructed the B.C. government to finance treatment for parents of autistic children.

Mr. Stratas said the two rulings are completely at odds over the relationship between elected representatives and the judiciary when it comes to budget allocations.

What's more, the clash is occurring at a time when there has been renewed factional warfare within the Supreme Court over the conditions that require deference to decisions of Parliament.

The Newfoundland ruling concludes that the province was amply justified in deciding that the equity payments were too costly to sustain.

It said that while the Charter gives judges new powers to pass judgment on the goals of legislation, "it does not confer on the judiciary untrammelled licence to usurp the policy domain of the elected branches of government beyond that point."

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