Activist Judges

Commentary, Government, Brian Giesbrecht

Leaks from the Prime Minister’s Office concerning a potential appointment of Justice Glenn Joyal, Chief Justice of the Manitoba Court of Queen’s Bench, to the Supreme Court of Canada highlights differences between the treatment of judiciary appointments in Canada and that of our neighbour to the south.  Why do Canadians not pay more attention to appointments to our highest court and the impact the Charter of Rights has on our democracy?

Who sits on the U.S. Supreme Court is of crucial importance there. Their ‘Supremes’ rule on the constitutionality of virtually everything important.  Who is or is not appointed to their highest court can have a profound influence for decades. The most significant legacy of the Trump administration may be a conservative Supreme Court.  

Canadians have never been that interested in who sits on our top court.  That is because – until 1982 – the personal views of judges did not matter all that much. Their main role was to interpret laws passed by elected representatives.  This changed fundamentally when the Charter of Rights came into being. Now, a judge’s personal views became extremely important. Many issues formerly decided by politicians are now decided by our courts.

Judges fall generally into two camps.  Those who could be called “conservatives” believe that judges should be reluctant to become involved in matters that had formerly been dealt with by the peoples’ elected representatives.  Judges in the other camp are generally more “activist”, or “interventionist” – more inclined to intervene and make new law.

An example of an “activist” decision was the Supreme Court’s Haida Nation case.  In 2004, a decidedly activist Supreme Court literally invented a “duty to consult” Indigenous communities when development is being considered on any lands considered to be part of their “traditional territories”.  Today’s stalled pipelines and other development opportunities are a result. The Haida Nation example of judicial activism has proved to be a job-eating monster.

Another disadvantage of having something become a court-decided “constitutional right” is that a court-decided “right” becomes constitutionally enshrined – and almost impossible to reverse. No Canadian politician will try the constitutional change route after the failures of  Meech Lake and Charlottetown.

Elected representatives are answerable to the electorate. Courts are not, and they are ill-equipped to judge how much money a decision will cost Canadian taxpayers.  ‘Money’ is not even a main consideration for the courts. The courts are too often thrust into a role that should be handled by elected bodies, with elected bodies more inclined to “dump” intractable issues into the courts, and too many judges willing to usurp what should be a legislative function.

The Haida case is one example only of the many crucially important Charter decisions that have changed many aspects of our lives.  Justice Joyal gave a profoundly important speech on the proper role of judges in interpreting the Charter of Rights at the 2017 Law and Freedom Conference. (He is in the conservative camp.) He also reflected on the broader questions of how Canadians should view the Charter and how the Charter has changed the Canadian polity. He even suggests we risk a “consequential intellectual complacency” if we don’t ask those questions.

Is the diminished role of our elected representatives a cause for concern?