Sunday, October 31, 2004

Judicial Review

I have listened with interest to criticism of the Supreme Court, its unelected character, and charges that it is foisting policies on an unwilling Canadian population. Those who have taken courses from me know that I sympathize with those concerned about any infringement of democracy in Canadian society and, in this regard, I want to appreciate/like what the by-and-large conservative critics of the court have to say. But, I just can't. Why? Several reasons.

First, I am disturbed by the fact that so many conservative critics have decided to fight the process of judicial review on the issue of same-sex marriage. I find it difficult to support any argument if that argument, in effect, state that different Canadians should be treated differently. Those who reject the authority of the Supreme Court using this issue as an example are, implicitly at least, defending inequality: one rule for straight Canadians; one rule for gay Canadians. And, I just can't expect that type of legislated discrimination.

Second, and more importantly, the critics of judicial review have really missed the boat in that they rarely tell us that the majority of Canadians favour equality. So, those who comdemn the courts for foisting gay equality (in the issue of same-sex marriage) on Canadians fail to tell us that they would use legislative power to foist inequality Canada, something Canadians have said they do not want.

Third, the critics of judicial review so drastically simplify the process of Canadian democracy as to make a mockery of it. Should not, they ask, the people decide important public issues? The answer is: yes. They have. The people have decided that Canadians should be treated equally and that discrimination is not acceptable in Canada. The courts are there to ensure that this decision -- made by Canadians via their duly elected members in a representative democracy -- is enforced. Those who would limit the power of the courts are, in effect, arguing against this opinion: that the Canadian legal system should enforce the wishes of the people in a democracy. Canadians, to say this again, have spoken: equality is what they want. We made it part of the Charter via the legitimate democratic system that existed and continues to exist in Canada.

Fourth, critics of judicial review also fail to mention that they have not done particularly well in recent elections in Canada. I have my own political views so let's leave them to one side and focus on what the parties say. The Conservatives, the federalist only party running that has qualms with judicial review is garning about 1/3rd of the vote. This does not indicate uniform opposition to judicial review. In fact, it indicates that the opponents of judicial review have minority support in Canada. Conservatives -- and everyone else -- of course has the right to make their case, but to claim that a minority political view is somehow more representative of what the majority of Canadians think than the majority view (the majority voting for parties that favour judicial reivew) is a tad, well, odd. Let me put this another way: in the last federal election Canadians could have exercise their democratic right to elect a political party that would have severely constrained judicial review in Canada. They didn't. To me this indicates that those who oppose judicial review in the name of democracy need to get their facts straight.

Finally, the process of judicial review is remarkably complicated. I don't want to go into this here, but anyone who has spent anytime reading over court decisions, reading in philosophy of judicial review, considering the way in which courts approach particular issues, knows that what is going in with judicial review is much more than a group of nine unelected people usupring rights from the majority.

There are, to be sure, a lot of problems with the conduct of the Canadian judicial system and I have no doubt that there are productive and effective changes that can be made. I wish the opponents of judicial review would direct their attention to making these changes as opposed to creating a paper tiger. For example, if judicial review is going to be limited, Canadians have a right to know how individual rights will now be protected. There is no reason these need be protected by the courts and the courts have made some odd (in my view, wrong) decisions (see the previous entry) so I have no trouble in changing the way things operate if it will improve Canada. Rather than making seems to me like a politically motivated argument against judicial review, I'd ask the (largely, but not exclusively) conservative critics of judicial review to throw their ideas for improving, say, the protection of individual rights out into the public realm. Who knows, they might just be the thing we need to make democracy, the protection of individual rights, and judicial review work better.
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