The Supreme Court's Democracy Gap

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Appeared in the National Post

“As word of Judge Fish’s nomination spread through the legal community,” reported the Globe and Mail last week, “he garnered praise for being wise, innovative, fair and intelligent, and for having a polite demeanor.”

Through gracious media reports of this kind, Canada learned of Quebec Court of Appeal judge Morris Fish’s elevation to the Supreme Court. The journalistic style is revealing: Word of the appointment “spread,” like scholarly scuttlebutt. ‘Did you hear that Stanley made tenure?’ ‘Did you hear that Morris made the Supreme Court?’

Counting Mr. Fish, Mr. Chrétien has now minted six of the nine Supreme Court justices. There has been no public scrutiny of the process, which is in effect a snooty cocktail party affair to which the riffraff electorate is uninvited. The Justice Minister entertains an informal consultation process in which the views of leading members of the bench and bar are sought, yet there is no open or committee discussion in Parliament, and there is no role for provincial governments to have any say in the decision, even though the Supreme Court acts as the referee in disputes between the federal government and the provinces.

We have a serious democracy gap in the Supreme Court. The people of Canada know it (opinion polling consistently shows that Canadians support a more transparent judicial selection process). The media know it (editorial writers strongly support open confirmations). Why are the Supreme Court justices so resistant to accountability?

It’s a curious intellectual position for the justices, many of whom have openly rebuked greater transparency in the selection process. Although they speak out frequently in public lectures and media interviews after they are appointed, they don’t broadcast their more controversial views on social policy to Parliament before they arrive on the bench.

As a consequence, new judicially created social policy catches the public by surprise. Whether it is same-sex marriage, euthanasia, or prisoners’ voting rights, judicial activism parachutes on to the public agenda by stealth. Parliament then hurriedly patches together a law or amendment to appease the justices. Critics then write frothy letters to the editor.

Were nominees to signal their views beforehand, then there would be greater, more meaningful dialogue between Parliament and the courts. Legal trends could be anticipated by Parliament, and MPs could then solicit opinions from experts and the public, with a view to testing the social and economic implications of putative court decisions.

The system as it now functions gives unelected and unaccountable judges the power to hijack the policy agenda. As Prof. Patrick Monahan of Osgoode Hall Law School has noted, the Supreme Court has become increasingly activist by striking down government laws, conduct, or 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.

As a result, a great number of government powers and legislative objectives have been frustrated by activist judges. Just some of these include: national security, cost-containment, protections against unionization, and the ability to ensure effective police investigations and law enforcement.

What’s more, 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.

Among the most significant areas of growing judicial activism is equality rights law. Madame Justice Beverley McLachlin has written that “Canadian equality law is in its infancy.” This is disconcerting, 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.

Consider a recent case, Auton v. British Columbia, which involved a challenge to the provincial limits on the types of publicly funded programs for autistic children. The B.C. Court of Appeal ordered the government to pay $20,000 in compensation to the four families of the autistic children named in the case, and to fund the full costs of treatment for the children. Here the Court failed to properly measure the opportunity costs of judicial policy choices: An order to fund one type of treatment means fewer resources available for other, potentially more clinically effective treatment programs. (The appeal to the Supreme Court is set tentatively for February 2004).

There is no philosophical consistency in activist decisions. Some decisions, like Auton, reward litigants with new, positive rights that carry heavy demands on the public purse. Other decisions champion a form of what Isaiah Berlin called “negative liberty,” where state regulations against the individual are struck down. A more transparent judicial selection process would enable Canadians to evaluate in advance the attitudes that nominees hold toward liberty and parliamentary supremacy.

What should really jar all Canadians is how 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.

Meanwhile, Canadians are clamouring for more public accountability of judges. In 1987, there were 47 formal complaints to the Canadian Judicial Council. In 1997, there were 202.

It’s time to take the critics seriously. For too long, critics of activism have been tarred as socially intolerant people who refuse to recognize the Court’s eminence. This is unfortunate. All these critics want, ourselves included, is to be listened to.

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