Judges in Canada: Powerful Policy Makers

Introduction

The Supreme Court of Canada, seen as the guardian of the constitution was given the advantage of making broad judicial decisions after the entrenchment of the Charter of Rights and Freedoms in 1982 (Kelly, 2004). The courts prior to the Charter had authority, but specifically over matters pertaining the divisions of power (Kelly, 2004). The introduction of the Charter was identified as the most radical break ever made associated with Canada’s constitutional and legal traditions (Hiebert, 2010). Through the Charter, the nation was given fundamental freedoms and rights, and the courts have been the sole institution to review legislation for its consistency with rights, as well as make and amend laws (Hiebert, 2010). The Charter has significantly enhanced the role of the judiciary in Canada but has also contributed to an increase of conflict. The conflict can be analyzed through the excess power of judges in Canada and the antidemocratic judicial power that is perpetuated by the Supreme Court. The elected governments that hold sovereignty over the nation do not retain sufficient authority over public policy in which judges have excess power, judicial independence and act anti-democratically apart from the views of the nation, because checks and balances are hardly imposed to ensure the democratic principles in Canada are being followed.

This essay will be split into two parts: the first section will discuss the excess power that the judiciary holds, and the second section will discuss the anti-democratic values that are perpetuated by Judicial power. Both sections will also display an argument in relation to why elected governments do not hold sufficient authority over public authority.

Judges Have Excess Power

Canadian Judges are individuals who understand legal principles within the nation (Dyzenhaus, 2010). They are essentially umpires in constitutional affairs (Bazowski, 2009) Judges enact legal authority in which they are authorized to make decisions pertaining the law, and in doing so they interpret the Charter of Rights and Freedoms to conclude various cases. Judges have too much power in the sense that they have the final say in judicial procedures and are given the jurisdiction to deal with the most serious cases in the country. When the Charter was in the process of development Prime Minister Pierre Trudeau would often speak of rights and freedoms as if they were not fragile and unproblematic content that would go untroubled by the new powers that Canadian judges were given (Russell and Howe, 2001). Before the Charter, the only constitutional disputes that arose were the division of powers (Bazowski, 2009). The judges were ultimately given the authority to settle and regulate arguments over which government was empowered to regulate activities (Bazowski, 2009). This break essentially gave judges the ability to obtain power, as regulating the highest level of authorities in the nation was a very distinct and important responsibility. This form of regulation was considered constitutional adjudication (Bazowski, 2009), and judges were granted the final say over major political issues.

In the Supreme Court of Canada, still prior to the entrenchment of the Charter of Rights, judges were developing a more activist role (Bazowski, 2009), in which they obtained more power. These changes were introduced by the former Justice Minister, Pierre Trudeau (Bazowski, 2009). The reforms included changing the appeal process to give the court complete control over the cases that it would hear and therefore allowing the courts to determine which areas of the law it would influence through its judgements (Bazowski, 2009), therefore allowing the courts to determine importance of matters pertaining law and setting precedent for future cases.

The Charter further enhanced the courts’ power by permitting the courts to evaluate the constitutionality of government actions and strike down laws that were found to be unconstitutional, because the charter emphasized state conduct (Bazowski, 2009). Apart from dealing with divisional power disputes, the charter permitted the courts to develop more responsibilities that were amplified by the charter (Hiebert,1999). The courts have been able to pass judgement on a broad range of political and social issues, form major cases like the testing of cruise missiles in Canadian airspace to the action of euthanasia (Hiebert, 1999). When analyzing both the charter and judicial decisions there are many instances in which the courts appear to have great power. Dealing with the most heinous and serious crimes, the Supreme Court of Canada has been able to finalize decisions pertaining the outcome of specific cases. Through this, judges have been able to set precedent which still holds value in judicial proceedings today.

Judicial independence contributes to the excess power that judges have. Judicial independence maintains that the judges within the courts are not to be interfered with by the government whether it is their decisions, their financial security and their security of tenure that ensures their permanence (Gelinas and Brosseau, 2015). The courts are not to be influenced by political structures in any way that could influence their decisions. This system is essentially a private entity that cannot be coerced by government officials.

The power that is perpetuated by the Supreme Court governs public policy. Each level of government is constrained in their ability to pursue priorities of legislation (Hiebert, 2010). Governments have the jurisdiction to create and amend laws, but as far as applying the laws and interpreting them in accordance with the charter, they tend to refrain, hence why judges maintain so much power within the system. Essentially, the government is meant to avoid meddling with the law, to avoid conflicting with interest groups, for example (Hiebert, 2010). It is beneficial for the government to stay out of initial judicial proceedings so that the state does not pose as a coercive force. The courts in this case, are the trusted mediators who stay neutral regarding issues pertaining the law and the interpretation of challenges against the charter.

Canada highlights equality and diversity for its nation, in which democracy is upheld as a valuable and important part of the nation’s political culture. Democracy usually consists of elements such as popular sovereignty, political equality, and political freedom (Cochrane et al. 2017). A definition of democracy from Robert A. Dahl suggests that democracy aims to prevent cruel and vicious rule by leaders, it offers citizens fundamental rights and freedoms, it discourages war and it encourages prosperity (Ringen, 2008). The main scope of democracy in Canada, aside from it being commonly held as a political ideology that includes fairness and equality, is seen through the government’s dependence on confident support in the legislature (Huber, 1996) in order to proceed with its governance over the state. Judges like parliament have the presence of a strong democratic value which are confidence votes amongst each other, but in many cases, the ways in which they are chosen, the over projection of judicial activism and the lack of equality amongst citizens in court cases influence anti-democracy.

The ways in which the Supreme Court judges are chosen influences anti-democracy. The nine justices that sit in the Supreme Court are not chosen by the Canadian public as they are appointed without any publication or public hearings, by the Prime Minister (Roach, 2016). Canadians have ultimately no jurisdiction in choosing their fellow citizens who will make decisions to impact all of Canada (Roach, 2016). The courts are not democratic in their selection, organization or their process (Martin, 2003). Once appointed, to Supreme Court, a judge may stay in office until they turn seventy-five years old (Martin, 2003). Their decisions are solely independent from anyone’s coercion or discretion (Martin, 2003).

Judicial activism is a crucial part of the anti-democratic values in the courts. Judges are regular human beings that possess emotions and can be subject to making mistakes (Wistrich et al., 2015). People have the tendency to react more positively towards others whom they like or feel sympathy towards as opposed to others whom they dislike or feel disgust towards (Wistrich et al., 2015). It can be argued that the feelings about litigants or about certain situations can influence a judge’s decision (Wistrich et al., 2015). Judicial activism in Canada has been widely complained about by many people. Whether it has been the accusation of the Courts inventing laws to protect the rights of corporations or other powerful interest groups, the courts have shown to apply their own views in their decisions (Roach, 2001). Judges may hold biases and give the rights of individuals and groups primacy over the public good (Roach, 2016). Judicial activism is overall anti-democratic as it is a factor within the courts that does not account for the benefit of all. The charter has been set in place to act as a guideline for judges to interpret, but judges tend to make the law in their own image, in which their political views and personal values influence them (Roach, 2016). Judicial activism undermines the value of the Charter in the judiciary, in which justices refer to underlying values such as human dignity, that does not appear in the Charter that they are meant to base their decisions from (Savoie, 2015). This action enables the courts to go beyond the reach of the Charter in their work resulting in the threat towards the appropriate institutional division of labour between legislatures and courts (Savoie, 2015). Judicial activism further contributes to the lack of democracy in the courts as it is representative of their personal perspectives.

Judicial power has produced an anti-democracy through interest groups. Interest-group politics is anti-democratic as it erodes citizenship in which people categorize themselves according to their race or sex, or any other criterion that moves them away from being classified as a regular citizen and these groups use the courts as a means of bypassing democratic processes (Martin, 2015). Interest groups prefer to pursue their political agenda through the courts rather than politicians (Savoie, 2015), suggesting that there is a lack of faith in the political system. These groups champion one goal and in many ways cause exclusion of others in the process of doing so (Martin, 2003). The Supreme Court stands as a neutral entity that reinforces the Charter, but justices tend to make decisions in favour of these interest groups to allow their confidence in the judiciary to remain (Martin, 2003). By favouring groups, the Court faces the issue of not imposing democratic values, as there is an absence of equality.

Elected governments although holding more power than the court system, do not retain sufficient authority over public policy. The creation of legislation is inherent within the executive and legislative branches of government, but after the passing of the Charter, judges have shown to be the main policy makers. The lengthy power given to the judiciary to finalize crucial decisions has allowed them to be a major contribution to Canadian government. Judges are exceeding their boundaries and steps are needed to be taken to but them back incline so that they can be more accountable to the Canadian public (Russell and Howe, 2001). Parliament is seen to no longer hold the respect of Canadians, as opposed to several decades ago, as politicians and political parties influenced public policy and they were all an individual needed (Savoie, 2015) but now judges are the forefront of legislation, while the government takes the blame for decisions imposed by the courts. Canada’s chief justice made it clear that law and justice rest on rational principles and not on laws that haven been approved by Parliament (Savoie, 2015), further suggesting that government officials are not needed to perform these tasks.

Elected officials also show a lack of authority over public policy as many controversial supreme court cases have been finalized without second questioning. In case the judiciary oversteps its boundaries and does not act within the requirements of the Charter, there is the entrenchment of Section 33: the notwithstanding clause. This act can be imposed on the Supreme Court’s decisions concerning a law entrenched in the charter, yet it has barely been used, which undermines is efficacy and usefulness (Russell and Howe, 2001). Section 33 is there to reinforce democracy within the judicial system and the charter, but elected officials tend to refrain from using it so that conflict will not arise (Russell and Howe, 2001). If judicial power was completely democratic then the current entrenchment of section 33 would be completely abolished but since non-elected judges are making crucial decisions, there needs to be some form of checks and balances to maintain democratic principles within the judicial system (Russell and Howe, 2001,). Yet, this ideology is contradictory as governments perform little to no checks and balances on judicial power to avoid upsetting the nation and their fundamental rights (Russell and Howe, 2001). Therefore, elected governments have the jurisdiction to possess authority over public policy but refrain from exercising that authority as they leave it in the hands of the judges who society have already built trust in.

Conclusion

Overall, judges have excess power due to their jurisdiction over extreme matters, their institutional independence, and their major role in ensuring the Charter is held to its highest level of importance. Judicial power is anti-democratic because of the appointed and long-term serving justices, the expression of judicial activism, and the influence the court has in the rise of interest groups. The Supreme Court has shown to be an effective and strong institution but has also shown to dominate a large part of Canadian society. In many cases, mainly driven by their important position, their personal interest and their tendency to appease interest groups, judges of the Supreme Court have shown dominance over public policy. This essay has aimed to show the ways in which the judiciary is too powerful because of the roles and functions that they have been granted by the government. Their power has also shown to be a problem within Canadian society as they seem to be the dictators of the law as opposed to the executive and legislative branch. Judicial Power perpetuated by the Supreme Court was analyzed through factors such as judicial activism, that highlight the idea that Supreme Court justices, their decisions and their overall operation undermine Canadian Democracy. Many critics such as Kent Roach have argued that their intuition to make and amend laws and judicial activism have deepened democracy (Roach, 2016), but in a nation where ideas and ideologies are supported by confidence votes and the representation of all people, the courts seem to stray away from this. This essay has also aimed to express how elected governments do not retain sufficient authority over public policy to be accountable to the entire nation, due to their idleness in matters that are essential to society. They have let the judges control this sector many years ago and continue to allow them. There is still more to learn about the stigma behind judge’s power on all grounds and many more factors aside from the arguments that were developed in this essay, can serve to further prove that they have excess power and their power is anti-democratic.

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