Lawyer, Policy Wonk, Author, TV Talking Head

Twitter: chrisschafer

Save us from ‘activist’ legislators

Posted In:  ArticlesMedia    

Ottawa Citizen With the election of a Conservative majority federal government, future appointments to the Supreme Court of Canada has become an issue. With the recent announcement that two current Supreme Court judges will retire at the end of this August, Prime Minister Stephen Harper will have an opportunity to appoint several new judges to Canada’s top court in the next four years. However, with the principal role of the Supreme Court being an appellate court of last resort, in fact, the judges appointed by the federal government to the superior-level courts in each province are just as important, if not more so. They act as a first line of defence against legislatures which, more often than not, pass laws and regulations that impede freedom.

The judiciary is the third branch of government, the other two being the executive branch that carries out government business and the laws of Canada, and the legislative branch that debates and makes laws. With the adoption of the Charter of Rights and Freedoms, the powers of judicial review were expanded. Courts now subject government legislation to the Charter’s constitutional limits, including protections for such fundamental freedoms as expression and association. While an imperfect document, the Charter is designed in many ways to limit government action with respect to individuals.

We should not confuse this role for courts with being judicially activist. The term “judicial activism” has come to mean little more than a judge rendering a decision one doesn’t like. So, for example, when same-sex marriage was originally legalized as a result of court cases in which provincial or territorial judges ruled existing bans on same-sex marriage unconstitutional, some of Canada’s political right rallied against liberal or left-wing judicial activism.

The problem with today’s courts is not judicial activism as many commentators have and continue to suggest, it is rather a judiciary that is inattentive to the crucial balance between the prerogatives of the elected branch of government and individual freedom. In fact, given the ever-proliferating nature of laws and regulations passed by governments at all levels every year, the term “activist” is better applied to politicians and the elected branch of government. After all, it is legislatures full of “activist” politicians bent on passing burdensome regulation that enlarge the size of government and further entrench dependence on the state, which is the biggest threat to freedom, such as the economic freedom to earn a living free from unreasonable government interference, and to own and enjoy property.

Economic theory teaches us that the elected branch of government will invariably be captured by stakeholders whose primary concern is the advancement of their own interests -such as quashing competition -at the expense of the public interest. The freedom to pursue a living without interference from government regulation that serves no discernible public health or safety objective is important because it is exactly this freedom that creates jobs that establish self-sufficient taxpaying citizenry, not protectionist regulation. Economic freedom creates a productive economy which will enable Canadian governments to pay down their debts, pay for health care, and a whole range of other social programs.

Judges must be prepared to protect economic freedom against government regulation that serves no real public interest, by, for example, ensuring that governments more than adequately defend their legislation by displacing what ought to be quite an onerous burden under Section 1 of the Charter to show that the legislation in question can be “demonstrably justified in a free and democratic society.”

Other “tools” for this form of judicial engagement already exist in our Constitution and Charter, if judges choose to use them. For example, the courts could abandon their practice of excluding “economic liberty” from the definition of “liberty” under the Section 7 Charter right to “life, liberty and security of the person.”

The judiciary is an absolutely vital branch of government. Lower court judges appointed to advance a rule of law under which individual Canadians control their own destiny as free members of society, would serve as a crucial first line of defence against otherwise activist politicians and the legislative red tape they proliferate, a defence that is essential for the purposes of securing our freedom.

Who knows? Some of these lower court judges may even one day be appointed to the Supreme Court of Canada.