19 November 2003

Judicial overreach revisited

My thanks to James Brink for alerting us to the following editorial in the saturday edition of the National Post: "Judicial rule." An overreaching judiciary has been a problem south of the border for decades. Now we are similarly afflicted here in Canada:

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.

At one time I thought that judges in this country were likely to be more restrained than their American counterparts, despite the Charter investing them with new powers. Recent years have demonstrated that, if anything, the opposite is the case. Whether our governments have the will to do anything about this remains to be seen.

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