Judical Activism, Social Policy, and the Role of Parliament

MR. PRESTON MANNING
FORMER LEADER OF THE REFORM PARTY OF CANADA

3 November 2003

Thanks for the invitation to join you tonight, and for the honour of presenting the annual Allan J. MacEachen Lecture. I have been asked to talk about Judicial Activism, Social Policy, and the Role of Parliament. But it is a little intimidating to do so knowing that Allan MacEachen – with his vast knowledge and experience on all these subjects – is in the audience. It reminds me of a fellow who survived the Great Winnipeg Flood and was so moved by the experience that whenever he was given an opportunity to speak publicly on anything he always asked if it would also be all right to say a few words about the Winnipeg Flood. Eventually this fellow died. And when he arrived at the pearly gates St. Peter advised him that it was the custom there to have a little reception for new arrivals and he would be welcome to say a few words about his life on earth. This fellow then asked, “Would it be OK if I said a few words about the Winnipeg Flood?” To which St. Peter replied “Of course! But I should tell you that Noah will be in the audience.”

Judicial Activism Defined

As you are all aware, the Preamble to the Canadian Charter of Rights and Freedoms affirms that “Canada is founded upon principles that recognize the supremacy of God and the Rule of Law.” And there is a wise and deeply rooted principle associated with the Rule of Law in the British Parliamentary tradition – that it is Parliament which makes the laws, the executive which administers the laws, and the judiciary which interprets –but does not make or administer – the laws. Since the adoption of the Charter this role of the judiciary in interpreting the law has expanded to include determining whether laws passed by the legislators are consistent with the Charter, striking them down if they are found to be inconsistent, and in some cases “reading” content into legislation to make it Charter compatible. “Judicial activism” refers to these actions by the courts to nullify or refashion government laws and the government policy decisions and actions they represent.

With respect to judicial activism and social policy, let me just briefly mention three examples with which you are no doubt familiar.

1. The definition of marriage

Marriage is one of the most basic of our social institutions, creating a unique and intimate bond between individuals and establishing the biological, social, and cultural context for the procreation and raising of the next generation. It had been defined by Parliament and the legislatures for the purposes of legalization and for the purposes of social and tax policy as “the union of one man and one woman.”

Recently, both the Ontario Divisional Court and the Quebec Superior Court decided that the traditional definition of marriage violated S.15 (the equality guarantee section) of the Charter and gave Parliament two years to address the issue. In effect, this struck down the previously drawn distinction between same-sex and opposite-sex couples in relations of permanence and in essence “redefined” marriage to mean the union of “two persons.”

What we have here then is a case of “judicial activism” – action by the courts to “nullify” decisions previously taken by elected lawmakers with respect to one of the most fundamental social institutions of society, and to “write in” to the law meanings and content not contemplated or intended by Parliament or the legislatures. (See www.marriageinstitute.ca for a good summation and critique of the same-sex marriage issue.)

2. The Queen vs. Gosselin

There is an important distinction to be drawn between judicial activism that restricts government actions and judicial activism that expands the obligations of the state. It is this distinction which makes the case of The Queen vs. Gosselin one of the most important Canadian decisions of 2002. In this case, a Quebec welfare recipient demanded a positive “right to welfare” in the form of an annual standard of living payment that she insisted was owed to her by virtue of her “right to life, liberty, and security” under S.7 of the Charter of Rights and Freedoms.

Although this claim failed, six out of seven members of the majority of the Supreme Court refused to rule out the possibility that S.7 of the Charter could impose positive financial obligations on the state in future cases. In other words, they kept the door open for some activist court in the future to direct social security payments to Canadians as a matter of right regardless of the social policy, legislation, or budget approved by the elected representatives of Canadians.

3. The Sharpe Pornography Case in B.C.

A third example of judicial activism that occurred while I was still in Parliament is the Sharpe pornography case in British Columbia. In this case, the B.C. court took the position that an adult’s desire to possess and enjoy child pornography is a protected Charter right and struck down legislation that was unanimously passed by Parliament only six years before to make possession of child pornography a crime under the Criminal Code. Parliament when it passed the law was well aware of the Charter’s provisions for freedom of expression but, unlike the B.C. judges, did not believe that this freedom should extend to activities which place the wellbeing of children at risk.

Immediately following the Sharpe decision, the Opposition in Parliament asked the government to either introduce Charter-compatible legislation making crystal clear the intent of Parliament with respect to this section of the Criminal Code, or to use the “notwithstanding clause” of the Constitution to temporarily assert Parliament’s view until an appeal to the Supreme Court of Canada could be heard. The government did neither. Eventually the Supreme Court reversed the B.C. court decision, though not completely. And in the interim, the prosecution of numerous child pornography cases across the country was dropped or placed in limbo as a result of the judicial activism of the B.C. court.

Concerns

Cases such as these have given rise to some understandable concerns respecting judicial activism, social policy and the role of Parliament which are the subject of our discussion tonight.

1. A Democratic Concern

That an increasing number of laws passed for better or worse by the elected representatives of Canadians are being modified – struck down altogether or substantially amended – by a judiciary which is not directly accountable to Canadians. The concern is that this trend weakens rather than strengthens democratic control over public policy and the expenditure of public funds in Canada.

I have mentioned only three cases illustrating various dimensions and potentials of this trend. A summary of the major court judgements from 1997 to 2002 which declared Canadian statutes and regulations previously approved by Parliament and the legislatures “unconstitutional” is contained in the August 2003 edition of the Fraser Forum published by the Fraser Institute. Please notice the range of subjects covered by these judgments:

• Management of provincial lands
• National security
• Regulation of expenditures on referendums
• Salary reductions for judges
• Residency requirements as a condition of employment
• Restriction of the definition of libel
• The publication of opinion polls in relation to an election
• Sexual orientation as a prohibited ground of discrimination
• Fishing rights
• Picketing by union members
• Enforcement of foreclosure proceedings
• Definition of marriage
• Voting in Indian Band elections
• Construction of dwellings on park lands
• The importation of obscene materials
• Exceptions to child pornography possession laws
• Protection of family farms from unionization
• Voting rights of prison inmates
• Municipal laws dealing with visual pollution and driver distraction

So, should Canadians be concerned about the courts having an increasing role – not simply in interpreting the law in these areas but in striking down or amending legislation and public policy on these subjects? I would say, Yes, if the rule of law is to mean that the laws to which Canadians are subject should only be made by lawmakers directly accountable to Canadians. (This is the “democratic concern” with respect to judicial activism.) 

2. A Political Concern

That judicial activism is a symptom of deeper and more serious political problems, namely, the declining effectiveness, influence, and respectability of our political institutions including the Parliament, the legislatures, the political parties, and elections. In other words, judicial activism is mainly a symptom of the so-called democracy deficit which is deepening in all the western democracies including our own.

Why is there no great public outcry against judicial activism, even if it poses a threat to democratic accountability? Because democracy itself is generally in decline, and there is frankly more respect for judges and courts among much of the electorate than there is for politicians and Parliament. When politicians say they have a mandate for making laws in relation to the public interest by virtue of winning a democratic election, what does this really mean at a time when democratic participation is declining?

Last summer you had a provincial election in Nova Scotia with a 64% voter turnout in which the Progressive Conservatives formed a minority government with 36% of the popular vote, or the support of only 23% of the electors. Last month in Ontario, a provincial election was held in which only 52% of the eligible voters voted, and the Liberal party which formed a majority government got 46% of the popular vote. This majority government is governing with the support of less than 22% of the Ontario electorate and if it proclaims a policy on anything eight out of ten Ontarians can stand up and say, “Wait a minute! 80% of us either voted against you or thought so little of you and the other options that we didn’t vote at all! You have no substantive political mandate to legislate for us on anything!”

If Parliament and the legislatures want to reassert their role in the making of public laws – if we want to stop the loss of portions of that authority to the courts by default – we need to address with greater urgency than ever before the declining public respect for and confidence in elections, political parties, politicians, and law-making bodies like Parliament.

3. A Third (Judicial) Concern

When it comes to judicial activism in these “social areas” with moral and ethical dimensions – like pornography, gay rights, and the definition of marriage – I suggest that judicial activism is again a symptom of a deeper problem. It is a symptom of the inability and unwillingness of elected politicians to deal with such issues themselves and their obvious desire to leave such decisions to the courts so that politicians don’t have to assume responsibility for them.

My father sat in a provincial legislature for thirty-three years and the Senate of Canada for twelve. He spent his entire adult life as a legislator as well as a politician and public administrator. One of the first lessons he taught me with respect to law-making was to ascertain whether or not a bill specified in unmistakably clear language the intent of the legislature or parliament in introducing and passing it in the first place. If the intent is not clear, then the legislature or parliament is handing jurisdiction by default to the courts – jurisdiction which the courts may not even want but which they are obliged to exercise by virtue of “the hole in the law” left by the legislators.

When I got to Ottawa I saw more than one bill – for example an omnibus bill in 1996 dealing with sexual orientation as a prohibited ground for discrimination – in which the government was deliberately vague on intent. When asked to explain this deficiency, the Justice Minister of the day gave the distinct impression that he had more faith in government-appointed judges to make the “right” decision on such subjects than he did in the members of the House, including the members of his own caucus.

With respect to same-sex marriage, one gets the impression that this is an issue that the majority of governments in the country – provincial as well as federal – would prefer not to touch with a ten foot pole, for political reasons, if they can avoid it. And the best way to avoid it is to decline to legislate clearly and decisively, and simply “leave it to the courts.”

This particular trend is not only a democratic and political concern, it is also a judicial concern – of concern to the judges and the courts themselves. The Chief Justice of the Supreme Court, Beverly McLaughlin (for whom I have a soft spot in my heart because she comes from the town of Pincher Creek in the heart of red-necked southern Alberta) rightly asks: “Could it be … that the greater danger from the adoption of the Charter will not come from judicial activism but from legislative in-activism…. Could it be that our legislatures at a some future date may be tempted to use the Charter and the courts as a way of avoiding the real tough issues that face our nation, the issues that engage the most fundamental values of individuals in the most visceral way, the issues that divide the electorate and government caucuses.”*

The short answer to her question is “Yes.” The Parliament and the legislatures are already using the courts in this way, and it ought to be a matter of concern to us all.

Remedies

So, given these democratic, political, and judicial concerns, what might we propose as remedies to aggressive judicial activism and to judicial activism as a symptom of the democracy deficit and the unwillingness of legislators to deal with issues that engage fundamental values? Some suggestions follow.

1. Legislative Action

If Parliament wants to put an end to “second guessing” by the courts with respect to legislative intent, particularly on controversial social and ethical issues, then:

a) Stop leaving “holes” in legislation. Let every parliamentarian resolve that he or she will not support any bill in Caucus, in Committee, or in the House that does not make crystal clear the intent of Parliament on the subject of the legislation.

b) Let the Justice Committee of the House review every major court decision where the courts either nullify an act of Parliament or read into an act something which Parliament did not intend – as in the B.C. Supreme Court’s treatment of the Sharpe pornography case.

c) Let the Committee then recommend immediately to the House an amendment to the legislation to clarify Parliament’s intent and/or to make it Charter compatible. Or,

d) Let the Committee explicitly recommend the use of the “notwithstanding clause” of our Constitution to reassert the supremacy of Parliament over the courts when it comes to lawmaking.

There is a role for swift and certain legislative action in curtailing aggressive judicial activism – in drawing the line more clearly between the Judiciary and the Parliament.

2. Increase Judicial Appointment Transparency and Accountability

If we must accept that the Charter gives an expanded role to the judges and the courts, let us put in place some democratic checks and balances to enable the people of Canada to have a greater say in how and by whom that role will be exercised and to hold judges more accountable for their actions on the legislative-judicial frontier.

Review of judicial decisions that strike down or amend federal laws and the recommendation of corrective legislative action by the Justice Committee of the House ought to improve the accountability of judges and courts in this area. But in addition:

a) Let us devise a more transparent, democratic, and open nomination process for judicial appointments – one in which nominations can be received from a variety of sources outside as well as within the legal community and openly vetted in accordance with clearly publicized criteria.

b) Let us also make federal judicial appointments subject to open confirmation hearings conducted by persons accountable to the people of Canada – such as the Justice Committee of the House or a reformed Senate. We should make the conferring of judicial appointments subject to the same inquiry that Edmund Burke insisted in applying to the conferring of political authority when he said, “Before we allow these people to do as they please, we ought first to inquire what it may please them to do.”

3. Learn to Better Manage Issues with a Moral/Ethical Dimension “Out of Court”

One of the reasons why political people don’t want to touch some of these moral/ethical issues with a ten-foot pole, and are more than happy to just turn them over to un-elected judges, is that we political people simply don’t know how to handle such issues.

None of the old guidelines seem to work any more. Politicians used to be able to avoid discussing the “fundamental values” to which Chief Justice McLaughlin referred, by saying, “My own values, particularly if they are faith-based, are private, and my politics is public, so I don’t have to comment on, and you don’t have to know, how my personal beliefs affect my public positions.”

But, particularly since September 11th, political leaders simply can’t say that any more. People want to know how the value commitments of Tony Blair and George Bush – particularly if they are faith-based – affect the foreign policies of their governments. People have a right to know. More and more Canadians want to know how the deepest value commitments of their politicians – whether they are faith-based or not – affect their attitudes to such things as the definition of marriage, or human rights, or the use of embryonic stem cells. And they have a right to know.

Politicians used to be able to avoid many of the questions about the morality of public policies by saying we believe in the separation of church and state. But while we can and should keep the institutions of religion and the state separate, we cannot keep morality and politics apart because human beings and communities don’t.

Many political people used to avoid making choices between moral options by falling back on the mantra of “moral relativism” – “you believe what you believe, and I’ll believe what I believe, and if we just respect each other everything will work out fine.” But after the Enron accounting scandal and the tragedy of September 11th, reliance on “moral relativism” to avoid taking a position has also become much less unacceptable. When the CEO of Enron would ask that firm’s accountants, “What do one and one add up to?” the answer used to be “Whatever you want it to add up to.” But that doesn’t work any more. Investors, employees, regulators, the world are all demanding transparent and transcendent standards of accounting that apply to everyone. And if any national leader tried to avoid taking a position on the morality of September 11th by saying, “Well, let the terrorists believe what they believe, and let the Americans believe what they believe, and somehow it will all work out…,” that leader would be hooted off the national and international stage. People the world over are demanding transparent and transcendent standards – not relativistic ones – with respect to what constitutes acceptable international conduct.

So what can be done to better enable politicians, legislators, public policy administrators, and interest groups to manage issues with moral and ethical dimensions other than simply dumping them off on the courts? Two suggestions:

a) We politicians must make a better effort to understand moral and ethical perspectives, including faith-based perspectives and perspectives other than our own. For politicians, this is not rocket science – it means reading, meeting with credible representatives of these perspectives, and polling on the values that underlie public opinions – maybe even enrolling for some courses at St. FX.

b) Legislators could also make a more explicit effort to create “standing” for moral and ethical perspectives before policy making bodies and regulatory bodies like the newly created Assisted Human Reproduction Agency for Canada. Granting “standing” doesn’t mean granting dominance. But it does mean that moral and ethical perspectives will be taken into account in achieving that balance of interests that is the essence of sound public policy making and decision making, and that Canadians need not wait until issues are before a court in order to have the moral and ethical dimensions treated seriously. 

4. We must get serious about tackling the Democracy Deficit in Canada (i.e., let’s do something about it, not just talk about it).

What can be done to strengthen the legislative arm of government and its credibility, particularly in relation to the executive arm which is always strengthening itself, and in relation to the judicial arm which has been strengthened and ennobled by the Charter? A few suggestions:

Some Canadians have lost faith in the electoral system because under the first-past-the-post electoral system 100% of the power goes to parties that get as little as 30% of the vote. So let us give Canadians a chance, through a national referendum, to vote for a change in the electoral system – to either retain first-past-the-post voting, or go to proportional representation, or the preferential ballot, or some “mixed system” like they have in New Zealand or Germany.

Some Canadians rightfully complain that they hardly ever have a direct say on any of the big policy issues that affect their lives. So let us make more use of the so-called direct democracy measures – constituent assemblies to tackle specific issues, like they are using in B.C. to tackle electoral reform, and greater use of citizens’ initiatives and referenda to secure public involvement in issues that concern us all. Canada has had only three national referenda since its inception, which is hardly overdosing on direct democracy.

Many Canadians say that they have lost faith in elected legislators because they invariably take their direction from the Cabinet or the party bosses rather than from the people who elect them. So let us demand as the price of our support for any candidate to the federal Parliament regardless of party that they agree to a Free Vote Protocol – freer voting and less party discipline in the Parliament and in committee, and no obligation on the part of the government to resign just because it loses a vote, with the exception of the Throne Speech, the Budget, and an explicit motion of non-confidence. The small-d democrats in all parties should unite to say to the all the candidates of all parties, “Why should we vote for you unless you will agree to vote for us?”

Tackling the democracy deficit – strengthening respect for and the effectiveness of the representative/legislative arm of government which has been steadily losing ground to the executive and judicial arms – is in the interests of every voter, every political party, and every candidate for public office. Why, even my old friend Paul Martin has had a conversion to democratic reform. He was travelling down the road to 24 Sussex Drive when apparently he heard a loud voice saying, “Paul, Paul, why did you vote against democratic reform all those years in Parliament? If you won’t vote for them, they won’t vote for you.” And right then and there Paul saw the light and said, “If it will help me to occupy 24 Sussex, I will dedicate myself to fighting the Democracy Deficit which once I promoted.”

It’s time for everyone to get serious about fighting the democracy deficit in Canada!

Conclusion: How and by whom will measures to deal with aggressive judicial activism and its root causes be advanced?

I am convinced that the people who will be most successful in achieving systemic changes – and that is what is required to clarify or redraw the lines between the judiciary, the executive, and the legislature for the 21st century – will be those who learn to build “principled coalitions.” The days are over, if they ever existed, when one group – particularly in the political arena – has all the answers, and all the resources, and all the public support, all at the same time, sufficient to make big, important, systemic changes.

On the surface, big national political parties look from a distance to be unitary, monolithic entities. But those, like Allan MacEachen, who know them from the inside can tell you that in fact they are coalitions of tangled interests – personal, collective, regional, ideological – and that increasingly the art of leading them is the art of building, managing, and sustaining coalitions.

From the standpoint of strengthening Canadian democracy at the federal level I am sure that many of us here – regardless of party – can agree that it is important to have an effective opposition in Parliament. That is why I have no hesitation in applauding the efforts of Stephen Harper and Nova Scotia’s own Peter MacKay to build a principled coalition among opposition members and their supporters. I wish them success, and hope to support their efforts in whatever way I can.

And I suggest that if excessive judicial activism and its root causes are to be curtailed, if we are to change for the better how we manage the moral and ethical dimensions of social issues, if democracy in Canada is to revitalized, if any of the proposals I have laid before you tonight are to be implemented, it will be through principled coalition building among those who believe in the necessity of such changes.

I once presented an economic reform program to a Nova Scotia audience and at the end I asked them, “Now, what do you think of that?” An old gentleman slowly made his way to the mike and said, “We think we’ll haul her alongside for a while afore we heaves her aboard.”

By all means, let us haul these ideas alongside for a while. But in the end, let us heave some of them on board. Thank you.