Harper to fight judicial activism
Conservative leader Stephen Harper recently set forth a vision in which
the Supreme Court would return to its traditional role, one focused
on applying rather than making law. "My view is that the role of the
court is to apply the Charter to protect the rights laid out in the
Charter," said Harper. "The role of the court is not to invent rights
that are not in the Charter."
Rory Leishman of the London Free Press told The Interim that Harper
is simply "advocating a return to the traditional division of powers,
to the idea that the courts should stick to adjudication and the elected
representatives to legislating. This historic division of powers is
the very key to democratic government."
Liberal campaign strategists, however, accused Harper's Conservatives
of attempting to "implement their radical social agenda by filling the
recently vacated spots with conservative jurists."
But Harper has pointed out that his view is a response to the Liberal
government's long history of stacking Canada's courts with liberal-minded
judges in a covert effort to legislate same-sex marriage. "They didn't
want to come to Parliament," he said. "They didn't want to go to the
Canadian people and be honest that this is what they wanted … They had
the courts do it for them, put the judges in they wanted, then they
failed to appeal, failed to fight the case in court."
Harper's alternative approach to the judiciary would narrow the activist
role of judges and emphasize the lawmaking role of Parliament. "The
idea of adjudicated rights is an important development in our political
system. It's one that I support in principle. But, to make it work,
we've got to make sure that we have courts that apply the law, not courts
that apply their own criteria, " Harper said.
Phil Horgan of the Catholic Civil Rights League agrees. "Let Parliament
do it's job," he told The Interim. "The proper dialogue between the
legislature and the judiciary can't occur when the legislature is told
to put a sock in its mouth!"
Harper's suggestion is not new. Leishman explained that until the enactment
of the Charter, members of the judiciary, including those on the Supreme
Court, habitually deferred to Parliament. Judges occasionally struck
down laws, but only on the ground that they violated the distribution
Then Supreme Court Justice William Rogers McIntyre emphasized the importance
of the division of powers in a dissenting opinion he wrote in the 1988
Reginav.Morgentaler decision. He explained, "It is for Parliament to
pronounce on, and to direct, social policy. This is not because Parliament
can claim all wisdom and knowledge, but simply because Parliament is
elected for that purpose in a free democracy."
Ottawa Citizen article suggested that Harper would have a difficult
time finding right-minded judges to fill the position. Leishman explained,
however, that judges in the past, including previous Supreme Court justice
John Sopinka, have been chosen from the ranks of the academia and other
members of the legal profession. There are many individuals in these
ranks who have the experience and the proper understanding of the role
of the judiciary to fill the position.
Harper has said he would begin the process by looking at a "parliamentary
committee approach" to give MPs a greater say in judicial appointments.
Chief Justice Roy McMurtry of Ontario recently said in a speech to
the Saskatchewan Bar Association that the courts must be "crusaders
for a new consensus" when people don't support "fundamental values"
represented by the Constitution.
"I think we are very powerful … We are becoming the new priests of
civil society, in a way, because we are making decisions about same-sex
marriage, … about euthanasia and abortion … We have now become an instrument
of governance, in the wide sense of the word. We are defining the fundamental
socioeconomic values of the society," said Chief Justice Michel Robert
of Quebec in a recent interview with Lawyers Weekly.