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One way to curb the excessive power of judges Print E-mail
Written by Link Byfield   
Monday, 17 October 2005
The Great Canadian Judicial Reform (Liberal-style) has begun.

No longer will the Prime Minister and his Justice Minister -- the PM and JM -- hand-pick who they want to sit on the Supreme Court.

Since the Charter of Rights took effect in 1982, being named to the Supreme Court is like being elevated to Mount Olympus. You are a god whose word is law for ever.

You can give convicted criminals the right to vote, make people go to work on Sunday, release thousands of accused criminals all at once, rewrite the dictionary and history, start Indian wars in the Maritimes, legislate new rights for the kinds of people you like, and openly ridicule the people you dislike.

Nice work if you can get the nod from the Prime Minister.

In future, however, a new committee will review the available candidates. Except that...

...the PM/JM will decide who goes on the review committee.

...will decide which candidates are reviewed.

...will not allow candidates to be directly questioned.
And will make the final pick.

Some reform. The PM (who can hire and fire the Justice Minister at will) retains total control from beginning to end. It's another nauseating example of "let's pretend Canada is a democracy."

Any complaint about judicial selection provokes the defensive reply, "So you'd prefer the ridiculous 'confirmation' free-for-all they have in the U.S.?" For as we speak, Washington is embroiled in another one.

No, in fact, the Americans have the same problem we do. Both our constitutions vest far too much political power in the Supreme Court. Trudeau's 1982 Charter of Rights simply imported the American problem to Canada. Bravo Pierre!

A better solution would be to amend the Charter of Rights to deny judges the power to strike down laws. Instead, they should send a law they consider unconstitutional back for review by the relevant legislature. And if the elected politicians decide they still like the law the way it is, the question should be put to a public referendum.

Judicial overturns happen quite often, but most are so technical or so obvious nobody hears or cares. But every so often, along comes a question of large social and political consequence--Sunday shopping, aboriginal "inherent" rights, the rights of the criminally accused, or the claims of minorities to "tolerance," "equality" and "dignity."

What makes us think judges know any better what's "fair" and "reasonable" in these areas than politicians do -- or for that matter ordinary citizens?

Recently, for example, a Charter complaint of "age discrimination" was brought by 16-year-olds who wanted to vote. The court said no, the discrimination against them is reasonable.

But more "progressive" judges could just as easily have given the kids a ballot, as when they began handing out marriage licenses to homosexuals in 2003, contrary to federal law and Parliamentary resolution.

Freedom and democracy depend upon checks and balances. Judges should not be more powerful than politicians, nor politicians more powerful than judges. Both can be blinded by ideology, ignorance or pride.

There needs to be a tie-breaker between them.

In the rare instances that they can't agree, the meaning of the constitution should be settled by a referendum of Canadians -- whose constitution it is, after all.

Then it matters far less who Paul Martin decides to send to Mount Olympus.

- Link Byfield

Link Byfield is chairman of the Edmonton-based Citizens Centre for Freedom and Democracy, and an Alberta senator-elect.
"Just Between Us" is a feature service of the Citizens Centre for Freedom and Democracy. The purpose of the Citizens Centre is to enhance freedom and democracy by enabling ordinary citizens to become active and effective on important issues outside the normal processes of party politics.

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