Critics unfair to courts

Pundits and politicians have spilled much ink in recent months claiming that the courts of this country — most notably the Supreme Court of Canada — are running the legislative show through “judicial activism.” Unelected and unaccountable courts have craftily usurped the role of Parliament, it is said.

This surge of interest in the role of courts in Canada’s constitutional structure is not surprising. More than ever, it seems, the courts are asked to resolve disputes involving divisive societal issues. That divisiveness may be the result of the religious, moral or political differences inherent in a democracy. Governments sometimes sidestep such issues for fear of alienating their voter base, but courts must tread where those governments fear to go.

Appellate courts have some flexibility in deciding which cases they will hear, but have not shied away from confronting intensely difficult issues.

And let’s not forget that our elected representatives increased the role of the courts in reviewing legislation — first through the Canadian Bill of Rights and then through the Charter of Rights and Freedoms. That is what the Charter is all about — setting out the rights that are essential in a democratic society such as ours, and giving the courts the means to protect those rights, if necessary. The courts properly assumed this role. It landed with them as the result of the constitutional change that brought Canada the Charter in 1982.

Canada is not alone in this approach. Many other democracies have set out constitutionally protected rights and made the courts the vehicles for protecting them. Canada’s Charter has been the inspiration for constitutions elsewhere — a “constitutional trendsetter among common law countries,” suggests a 2012 article in the New York University Law Review.

It is one thing to debate the findings of the courts. It is another to single them out for criticism for doing the very job our Constitution gives them. Unlike a government, courts under attack are almost voiceless. They cannot defend themselves through publicity or public education campaigns. Their silence outside the courtroom is part of the constitutional bargain courts have with the executive (cabinet) and legislature (government) in our society.

Attempts to debase the work of the courts threaten to undermine respect for the judiciary. And a loss of respect for one of the central institutions of a democracy poses a risk to the other institutions of that democracy as well.

The government, through legislation enacted by Parliament, can mitigate the effects of court decisions it does not like. That is how Canada’s constitutional system operates. The courts help to define the constitutional parameters within which governments must operate; the government can and should develop law and policy within those parameters.

That is an entirely reasonable constraint on government, any government. Canadians should be thankful that they have a strong, independent judiciary to consider and adjudicate issues which are fundamental to our democracy and to do so without political influence.