A
guest article by Jared Milne.
For
years, conservative writers have been complaining about what they
call “judicial activism”. Writers like Ted Morton, Rainier Knopff
and Robert Martin sharply criticize judges whose rulings, based the
Charter of Rights, make social policy that elected politicians are
reluctant to challenge. Social activists use the courts to try and
impose changes on society that are difficul, if not impossible to
overturn. Issues that would normally be debated by elected officials
are now seen as being beyond discussion.
Martin
claims that this activism undermines Canadian democracy, since the
judges are unelected and not accountable to anyone. Morton and Knopff
state that judicial activism divides Canadians, as political
opponents see each other less as fellow citizens and more as enemies
to be defeated.
Criticisms
like these are why the notwithstanding clause, which allows elected
politicians to overturn court rulings in some cases, was inserted
into the Charter. It is also why judges who may be nominated to the
Supreme Court of Canada are now being screened by elected Members of
Parliament, who will recommend which judges should be nominated.
These types of safeguards are being used to try and address the
problem of judicial activism.
Another
major issue in Canada right now are the trade agreements the Harper
government is negotiating with China and the European Union. One of
the most controversial aspects of both these agreements, as well as
the North American Free Trade Agreement (NAFTA), is the “dispute
resolution” mechanism that allows private companies to sue
governments for decisions or laws that harm their profits. The
companies’ cases are heard by panels of trade lawyers, who can
force governments to overturn the disputed laws or pay taxpayer money
to the companies as compensation.
Just
last year, an American oil company used NAFTA’s dispute resolution
mechanism to try and overturn Quebec’s decision to ban “fracking”,
a controversial way of excavating oil and gas. Ontario recently
imposed a moratorium on new wind farms, which led to it being sued by
a wind energy company. The trade lawyers hearing these cases will be
making decisions that affect millions of Canadians, directly
influencing government policy, even thou they’re unelected and
unaccountable to the public.
Sound
familiar?
Some
critics have said that a NAFTA lawsuit like the one meant to overturn
Quebec’s ban on fracking may not succeed, but the simple fact that
the oil company thinks it can do this is rather unnerving. Shouldn’t
the decision on whether or not companies can do “fracking” in
Quebec be a decision for the people and province of Quebec? And what
about the Ontario ban on wind farms? Many people in rural Ontario are
protesting what they say are the problems with wind farms-isn’t the
government listening to their concerns by imposing this moratorium?
Judicial
activism by Canadian judges is said to be a serious problem in
Canada. Because of this, we have important safeguards like the
notwithstanding clause, which ensures that accountable, elected
officials have the last word in many matters. The role of Canadian
judges is also firmly placed in the Constitution. However, the
unelected, unaccountable trade bureaucrats who make rulings under
NAFTA and other trade agreements have no safeguards to keep them in
check, or any Constitutional backing for their decisions. If
anything, these trade bureaucrats are engaging in their own form of
judicial activism, one which is just as bad for Canadian democracy as
anything Canadian judges have ever done.
-This
article was originally published in the St. Albert Gazette on
February 20, 2013 at
http://www.stalbertgazette.com/article/20130220/SAG0903/302209980/0/sag.
Jared Milne is a writer, researcher
and public servant living in St. Albert, Alberta. His major interests
including Canadian unity, nationalism and history, particularly
regarding how Canada's incredibly rich past has affected the present
we live in today.
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