Regina Leader-Post

Critics unfair to courts

- MICHELE HOLLINS Michele Hollins, QC, of Calgary is president of the 36,000-member Canadian Bar Associatio­n.

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.

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