The increasingly activist bent of the Supreme Court
signifies a deeply troubling "democracy gap" in Canadian public
life, according to Judicial Accountability in Canada, the August 2003 issue of Fraser Forum, released today by The Fraser Institute.
In three distinct essays, this special edition of Fraser Forum
addresses the increasing activism of Canada's top judges. This
judicial activism, when it undermines parliamentary intent, is
necessarily anti-democratic, since it elevates the judiciary to
the role of political actor capable of usurping the political
Furthermore, unelected judges have neither the democratic
legitimacy nor the technical expertise to assess the costs and
benefits of various policy alternatives.
"Last week, the Prime Minister named Mr. Justice Morris Fish of
the Quebec Court of Appeal to the Supreme Court of Canada. Mr.
Chrétien has now handpicked 6 of 9 justices to the Supreme Court
-- without any formal input from the provinces, the House of
Commons, the Senate, or the people of Canada," says Neil Seeman,
a Fraser Institute senior analyst, lawyer, and author of the lead
essay "Taking Judicial Activism Seriously."
This lack of consultation is just one of the measures of the
growing "democracy gap" between the judiciary and Parliament.
Other key indices include:
- As other researchers have noted, the Supreme Court of
Canada has become increasingly activist by striking down
government laws, conduct, and decisions. The success rate for
Charter of Rights claimants was 63 percent (12 out of 19 cases)
in 2002, the highest rate in the previous 10 years.
- Mr. Seeman's analysis shows that there is no philosophical
consistency in activist decisions; some decisions champion a
form of negative liberty, in which state regulations against
the individual are struck down; others advance a form of
positive liberty, where litigants are rewarded with new,
positive rights that carry heavy demands on the public purse. A
more transparent judicial selection process would enable
Canadians to evaluate in advance the attitudes that nominees
have toward liberty and parliamentary supremacy.
- The judicial branch is growing stronger relative to other
means of shaping the direction of public policy in Canada.
Voter turnout during national elections is sliding, and the
federal Liberals have increasingly invoked closure and time
restrictions on parliamentary debate.
- Canadians are clamouring for more public accountability of
their judges. In 1987, there were 47 formal complaints to the
Canadian Judicial Council. In 1997, there were 202.
- Opinion polling has shown that Canadians clearly favour a
more transparent judicial confirmation and nomination process.
- The Supreme Court of Canada has increasingly adopted the
"contextual approach" to judicial interpretation, which
counsels that statutes be interpreted flexibly, with due regard
to "diversity" and changing social values, as seen through the
eyes of the Court. There is also an increasing tendency for the
judges to look to United Nations' and other international
instruments as a means of adjudicating domestic disputes.
- From 1997-2002, a great number of government powers have
been frustrated by activist judges. Just some of these powers
include: national security, cost-containment, protections
against unionization, and the ability to ensure effective
police investigations and law enforcement.
- Although Supreme Court judges frequently speak out publicly
in lectures, journal articles, and media interviews about
controversial topics, they seem unwilling to submit to a
transparent judicial confirmation and nomination process.
Among the most significant areas of growing judicial activism
is equality rights law. Madame Justice Beverley McLachlin, the
Chief Justice, has written that "Canadian equality law is in its
This should be a concern for all Canadians, as Fraser Institute
analyst Sylvia LeRoy points out in a separate essay, since the
meaning of "equality" in Canadian law is undergoing a radical
evolution: In order to ensure equal outcomes, equal opportunity
has been compromised. Interpreted aggressively by an activist
court, 'substantive' equality obliges government to ensure equal
outcomes by redistributing benefits and privileges between
individuals and groups.
Changes in the Court's approach to equality cases are largely a
result of changes in Court personnel. In an accompanying essay on
section 33 (the "notwithstanding clause"), University of Calgary
political scientist Ted Morton argues that politicians should not
be afraid to use this clause as a way to temper judicial
"A consistent trend toward greater activism undermines the
perceived impartiality of the judiciary and so it is incumbent on
the judiciary to defend its position, to own up to its activist
impulses, and, finally, to acknowledge the democratic imperative
of increased accountability," says Seeman.
Seeman recommends complete transparency, democracy, and open
nominations in the judicial appointment process. When there
exists a vacancy on the top Court, any citizen of Canada should
be invited to submit a nomination of a qualified lawyer. All
those nominations surpassing a minimal threshold of petitioners
would be considered, and debated openly in the House, with final
selection by the full House and senate.