Judicial lawmaking

Yesterday the Supreme Court of Canada changed to law of property division on the break up of common law spouses. Just recently they changed the law regarding gifts from parents to children.

Both changes are not unreasonable -- my point today is not that the changes were "wrong" but that they were made by the wrong party.

It's long been argued (rightly) that any time a judge interprets the law the judge changes the law. Applying the law in specific cases requires putting the law to (slightly) new use and that inevitably changes the law.

But such incremental change is not what the Supreme Court has been doing. The Supreme Court has knowingly been changing the law in significant ways. And that's not the Supreme Court's job.

It's not that the Supreme Court isn't smart enough -- the judges are all brilliant and skilled. It's that the Supreme Court is not tasked to legislate.

We have legislators to make laws. Perhaps they get things wrong -- certainly I see many legislative initiatives as wrong headed.

But if they get things wrong they get voted out.

And Supreme Court judges don't face the electorate.