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Measuring the Growing "Democracy Gap" Between the Supreme Court and Parliament

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Release Date: August 6, 2003

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 process.

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 infancy."

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 excesses.

"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.



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