For years, conservative writers have been complaining about what they call “judicial activism.” Writers like Ted Morton, Rainier Knopff and Robert Martin sharply criticize judges whose rulings, based the Charter of Rights, make social policy that elected politicians are reluctant to challenge. Social activists use the courts to try and impose changes on society that are difficult, if not impossible to overturn. Issues that would normally be debated by elected officials are now seen as being beyond discussion.
Martin claims that this activism undermines Canadian democracy, since the judges are unelected and not accountable to anyone. Morton and Knopff state that judicial activism divides Canadians, as political opponents see each other less as fellow citizens and more as enemies to be defeated.
Criticisms like these are why the notwithstanding clause, which allows elected politicians to overturn court rulings in some cases, was inserted into the Charter. It is also why judges who may be nominated to the Supreme Court of Canada are now being screened by elected members of Parliament, who will recommend which judges should be nominated. These types of safeguards are being used to try and address the problem of judicial activism.
Another major issue in Canada right now are the trade agreements the Harper government is negotiating with China and the European Union. One of the most controversial aspects of both these agreements, as well as the North American Free Trade Agreement (NAFTA), is the “dispute resolution” mechanism that allows private companies to sue governments for decisions or laws that harm their profits. The companies’ cases are heard by panels of trade lawyers who can force governments to overturn the disputed laws or pay taxpayer money to the companies as compensation.
Just last year, an American oil company used NAFTA’s dispute resolution mechanism to try and overturn Quebec’s decision to ban “fracking,” a controversial way of excavating oil and gas. Ontario recently imposed a moratorium on new wind farms, which led to it being sued by a wind energy company. The trade lawyers hearing these cases will be making decisions that affect millions of Canadians, directly influencing government policy, even though they’re unelected and unaccountable to the public.
Sound familiar?
Some critics have said that a NAFTA lawsuit like the one meant to overturn Quebec’s ban on fracking may not succeed, but the simple fact that the oil company thinks it can do this is rather unnerving. Shouldn’t the decision on whether or not companies can do “fracking” in Quebec be a decision for the people and province of Quebec? And what about the Ontario ban on wind farms? Many people in rural Ontario are protesting what they say are the problems with wind farms. Isn’t the government listening to their concerns by imposing this moratorium?
Judicial activism by Canadian judges is said to be a serious problem in Canada. Because of this, we have important safeguards like the notwithstanding clause, which ensures that accountable, elected officials have the last word in many matters. The role of Canadian judges is also firmly placed in the Constitution. However, the unelected, unaccountable trade bureaucrats who make rulings under NAFTA and other trade agreements have no safeguards to keep them in check, or any Constitutional backing for their decisions. If anything, these trade bureaucrats are engaging in their own form of judicial activism, one that is just as bad for Canadian democracy as anything Canadian judges have ever done.
Jared Milne is a St. Albert resident with a passion for Canadian history and politics.
