Judges shouldn’t dictate spending
The Ontario Court of Appeal last month ruled unconstitutional the Ford government’s 2019 legislation limiting public-sector pay increases to one per cent a year for three years. The government was trying to control a budget deficit of $8.7 billion at a time when the average negotiated increase in the public sector was 1.6 per cent. The court ruling substitutes judges’ views for those of elected officials.
The proliferation of such rulings is leading more and more Canadians to conclude the judicial system is violating the fundamental principle of “no taxation without representation.” This happens whenever an unelected judge dictates to governments how they must manage public money, which is the rightful, and should be the exclusive, purview of elected officials, who, unlike judges, must explain to the electorate how they have balanced competing demands on public funds.
Elected representatives’ control of spending and taxes is a bedrock of democracy dating back to Magna Carta in 1215. As Financial Times economics correspondent Martin Wolf observed in his 2023 book, The Crisis of Democratic Capitalism, “The ability of an elected legislature to determine what, how, and how much to tax is ... the most fundamental feature of a democracy.”
Magna Carta’s limits on the power of the king became entrenched over time. In his chapter of The 1867 Project, the Post’s John Robson outlined how the idea of no taxation without representation was reinforced in 1407, when the “people’s representatives confronted the lords over a money bill, insisting the Commons had primacy” and the King and House of Lords ceded control of spending and tax bills. The principle’s roots grew deeper during the English Civil War when Charles I tried to impose “taxation without representation through dodges from forced loans to collecting ‘ship money’ even from inland towns,” according to Robson.
Americans enthusiastically embraced the principle of fiscal accountability to the people. In 1764, James Otis, an early supporter of American revolutionaries, coined the very phrase “no taxation without representation,” the idea that fuelled the Boston Tea Party tax revolt. Alexander Hamilton, a founding father and the first Treasury Secretary, argued the judiciary should have “no influence over either the sword or the purse.”
Despite our own long tradition of “no taxation without representation,” courts in Canada increasingly dictate to governments how to spend taxpayer dollars. Examples include, as Queen’s University’s Bruce Pardy has written, extending government benefits such as education and health care to non-citizens, a constitutional right for public servants to strike, a Crown duty to consult Aboriginal groups and a government obligation to maintain injection sites for illegal drugs. Social activists are trying to convince the courts the Charter includes positive obligations for governments to provide welfare, housing, health care and other benefits.
In his 2010 book, Power: Where Is It?, Donald Savoie, Canada’s leading scholar of public administration, concluded that because courts “no longer hesitate to shape the country’s social agenda ... Canadian politics is being transformed, in that difficult or divisive issues are increasingly being submitted to the courts for resolution rather than through the political process.”
But courts are ill-equipped to judge what level of government spending taxpayers are willing to support. Simply identifying a need is not enough. As Thomas Sowell has observed: “The number of things that are beneficial vastly exceeds what any nation can afford.” It is explicitly the job of politicians to choose priorities from among the infinite number of spending projects presented to government.
This shift of decision-making from elected to unelected bodies helps fuel populism. Yascha Mounk of Johns Hopkins University describes how undemocratic the liberal democracies have in fact become as “vast swaths of policy have been cordoned off from democratic contestation,” including monetary policy set by central banks, international trade agreements, and social issues settled by constitutional courts. Mounk concludes: “It is hardly surprising, then, that citizens on both sides of the Atlantic feel that they are no longer masters of their political fate. For all intents and purposes, they now live under a regime that is liberal, yet undemocratic: a system in which their rights are mostly respected, but their political preferences are routinely ignored.”
In his 2014 book, The Rule of Nobody, American lawyer Philip Howard argued that judges have become the “ultimate arbiters of government choices,” usurping that role from the electorate. Instead of outlining the boundaries of government regulation, “judges started making administrative choices themselves,” such as whether failed refugee claimants are eligible for health benefits or cash-strapped governments can control public sector pay. Before courts make further rulings about government spending programs, they should remember Alexander Hamilton’s warning that these intrusions undermine their moral authority and inevitably lead to calls to merge the judiciary with the legislature.
IT IS ... THE JOB OF POLITICIANS TO CHOOSE PRIORITIES.