Wednesday, March 28, 2012

Judges shouldn’t be making social policy

"Since the 1980s our biggest social questions have been decided by judges. Abortion, gay marriage, medical marijuana, Canada's obligations to citizens imprisoned abroad and now prostitution are all highly contentious matters that were not resolved by Parliament but rather by judges. Once an issue gets to the courts, the legislature runs for cover; "we won't reopen the debate" is a mantra, even when, to be honest, there never was any debate to begin with."


Stephen Downes said...

You say "Judges shouldn’t be making social policy." I respond that the policy was already made by legislators, and that judges are merely enforcing it.

The policy was created when the Constitution Act was passed in 1982. This was not an act of the judiciary, but of the various parliamanets that constitute (most of) Canada.

When a judge requires a legislature to abide by the provisions of the constitution, he or she is not "creating policy" as you suggest but rather enforcing policy already created, which is his or her job.

If Parliament wishes to change these policies - and thereby make abortion, gay marriage, medical marijuana and the rest of it illegal - then it has the option and obligation to pass laws to that effect, laws passed not with a simple majority, but with the weight of a majority sufficient to amend the sonstitution.

Or, under Canadian law, they coulkd simply invoke the 'notwithstanding' clause of the constitution, freely enacting their preference, but at the pain of a public acknolwedgement that such legislation is congtrary to the Charter of Rights and Freedoms.

Constitutional democracies are designed precisely this way - as you well know - in order to prevent the day-to-day tyranny of ther majority expressed against minority groups.

Arguments under the heading "Judges shouldn't be making social policy" are code for "we want legal enforcement of laws addressing minorities." Such laws have a long and sorry history in countries without the protection of constitutional law.

What prevents the government of the day from enacting laws that promote some or another 'majority value' is not judicial activism, but the requirement under the constitution that a government determined to repress a minority be clear and consistent about such practices.

What causes legislatures to "run for cover" from such frank admission of their motives is the realization by a broad cross-section of Canadians that laws applied against one minority could easily be applied to others.

A government that bans abortion could also be moved to ban contraception. A government that bans gay marriage could also be convinced to ban interracial marriage. We know from experience that the oppression of minorities leads to abuses of historic proportions.

We are all minorities, in one way or another. We should therefore be caustious when using language that is code for the repression of minorities.

Anonymous said...


James C Morton said...

I like that point -- that the Constitution is Parliamentary policy. I'll do some rethinking.

The Rat said...

Downes, your argument is based on the constitution and charter. Canada's charter hasn't been accepted by the most left leaning province and was never taken to the people who have to live under it, at least 40% of whom hold ideas considerably to the right of our constitutional framers. It is a restrictive document lacking acknowledgement of many basic rights and one that is impossible to amend. Judges, on the other hand, are not restrained by that amending formula and now read in rights that the framers of the constitution, a mere thirty years ago, explicitly left out. I think that is problematic, to say the least.

Further, I blame the Liberal party for tainting any debate on any controversial subject like abortion, prostitution, or medical care. The rhetoric from the Chretien Liberals especially has tainted that well and no party will go to it again. That, too, is a very bad thing.

So, if you are happy to be ruled by a flawed piece of paper and the appointed priesthood of judges that's your choice. I would rather trust the people and democracy.

James C Morton said...


Perhaps I am wrong but I hesitate to trust ANYONE!!! I remember what Charles I said: "For the people; And truly I desire their liberty and freedom as much as anybody whomsoever, but I must tell you, that their liberty and freedom consists in having of government; those laws by which their life and their goods may be most their own. It is not for having share in government that is pertaining to them; A subject and a sovereign are clean different things, and therefore until you do put the people in that liberty as I say, certainly they will never enjoy themselves."

Koby said...

Indeed, the courts should not be making social policy. The legislators should get off their ass and make it. Whether it be prostitution, SSM, drugs, euthanasia, Canadian politicians have let controversial issues fester for so long that the laws that shape the issues have become legally problematic or are becoming so.
The failure gives lie to the notion that Canada has a Liberal party worthy of the name liberal.

In marked contrast to a very activist US Supreme Court, the Canadian Supreme Court is not activist for the simple reason that the court has not been co-opted by the dominant political parties. The Roberts' court is an extension of the Republican party full stop.

The Rat said...

But Koby, a Conservative government would not have made the laws on SSM, abortion, or a myriad of other things, in such a way as the judges envisioned. Harper said that the judges would hold him in check and I think it is fair to say they have. Isn't that the problem? If judges interpret law through the filter of the constitution and the constitution has been worded such that the government cannot change it, then the judges become the ultimate arbiters of law and justice. That should be the role of Parliament - either through laws or by the ability to change the constitutional framework when laws and the will of the people conflict with the existing framework. I am not saying it should be easy but it should be possible.

The Rat said...

PS. Koby, I believe the last two choices the Liberals made in appointments to the Supreme Court were very political, even if the justices were not. As well, the opinions the current chief justice expresses regarding unwritten law and a judge's responsibilities to such must be worrying to anyone who is concerned about the fairness of the court.

Koby said...

Rat, just what sections in the Charter are you referring to? What sets the Charter of rights and Freedoms apart is not anything that would impact on the abortion and SSM debates. No what sets it apart is the sections pertaining to language, schooling, the various sub sections dealing with exceptions (e.g., affirmative action) and most notably the Notwithstanding clause. Of course, the most outlandish section in the Constitution is not part of the Charter of Rights and Freedoms at all and is thus, sadly, not subject to the notwithstanding clause and that is section 35.

As to SSM and abortion etc etc, the notion that these decisions came out of blue and the Supreme Court was anything other than the back end of learned opinion is ridiculous. The courts paved the way of SSM, for example, because the arguments against it are legally, morally, and intellectually untenable.

The Rat said...

Personally, I don't object to SSM itself, although I have real issues with the way the Liberals framed the debate. However, the idea that the constitution supports SSM goes against the facts that it was intentianally left out of the document and the framers have said as much. If judges need to read in new rights less than 30 years after the document was written, that shows how weak the document really is.

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