Calgary Sun

If judges want to make policy, they should disrobe and run for office
Disorder in the courts

Calgary Sun, June 15th, 2003

Canadians elect MPs and MLAs to debate and make laws for them in the legislatures of the nation.

They do not then expect unelected judges to thwart those laws in the backrooms of courthouses and from the bench.

That was one of the fears when Prime Minister Pierre Trudeau drew up his Charter of Rights and Freedoms and it’s a fear that has now become a reality.

Increasingly, the justices and judges of the Supreme Court of Canada, the Courts of Queen’s Bench, “provincial” appeal courts throughout the nation, and even family court, are declaring as invalid laws passed in the House of Commons and in the Legislatures or interpreting in their own way the ‘meanings’ of clauses in the Constitution, rather than simply laying down the law.

This simply has to stop.

If members of the bench want to make policy or set the direction of the nation, they should disrobe and run for public office.

The latest affront to Parliament — and to MPs and the men and women who elected those MPs — came last week from the Ontario Court of Appeal which decided laws declaring a marriage to be a union between a man and a woman are discriminatory against homosexuals.

Apparently, the Ontario Court of Appeal — whose justices are appointed by Ottawa and not by the government of Ontario — has such power that the day the court brought down its decision two men in that province immediately had their union legally sanctioned as a legitimate marriage.

Prime Minister Jean Chretien’s government seems utterly taken aback by the Ontario court’s moves and Federal Justice Minister Martin Cauchon still hasn’t decided how to respond to this hijacking of the rights of Parliament.
Premier Ralph Klein of Alberta has.

Klein says he will invoke the “notwithstanding” clause in the Constitution, which will mean no court — not even the Supreme Court of Canada — will be able to impose such an interpretation of the Charter of Rights and Freedoms in Alberta.

Coincidentally, it was Premier Peter Lougheed who was one of the leading proponents of pushing for a “notwithstanding” clause — basically an “opting out” clause — in the Constitution, precisely because he feared the rise of judicial activism and the diminishing of Parliamentary authority.

From Supreme Court of Canada justices extending the rights of Natives in the Atlantic provinces, to a family court judge in Calgary ruling unconstitutional a provincial law to protect teenage girls from pimps, judicial activists are undermining the authority of elected representatives and thereby denying the rights of voters.

It simply has to be halted. This is not democracy. It is an attack on democracy.

Unless the growing intervention of the judiciary into areas in which it has no right is reversed,
Parliament and the legislatures will become irrelevant.

Another frightening aspect of this is justices and judges are appointed unilaterally by the government of the day.

Hence, it is relatively easy for a government to stack a court with individuals who cling to its own beliefs.

Carried further, it also means a prime minister and his cabinet can avoid a political backlash from voters by getting the judiciary to do its own dirty work for it.

Unlike in the U.S., the public has absolutely no say directly or indirectly in appointments to the Supreme Court or other high courts.

The prime minister alone decides.

It’s time we followed the lead of the U.S. and allowed Parliamentary committees to vet appointments.

Vetting would allow the people’s elected representatives to learn about a proposed appoin-tee’s background and where he or she stood philosophically on issues of the day.

Perhaps even majority Parliamentary or Legislative approval would be an asset.

There would be absolutely no harm in any of this.

The harm is in the public losing complete faith in the courts.

And, lamentably, that is already starting to happen.