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The fallacies of judicial activism and elected judges

|Written By Chilie Eboe-Osuji

By all accounts, the Charter of Rights and Freedoms has become a popular symbol of the Canadian identity. Canadians love it.

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But there are those for whom life was more convenient in the good old days when the legislature was unquestionably supreme and parliamentarians could legislate the views of their voters into law without worrying that the court might intervene.

Confronted with the general popularity of the Charter, Charterphones now approach their attacks from another flank: the judges. First, pin the tag of “judicial activists” on the judges and then make them stand for elections. The aim, of course, is to subject judges to the whims of those who are most able to influence political outcomes in society by the power of the ballot.

There is much that is wrong in this. But it suffices here to deal with two fallacies. The outgoing Ontario Chief Justice Roy McMurtry correctly demonstrated the fallacy in the “judicial activism” charge when, on a TVO Agenda program, he countered that the elected politicians must be presumed to know what they were doing when they chose to give judges the power that they currently enjoy under the Charter.

Associate Dean Grant Huscroft, of the University of Western Ontario’s law school, was not as convincing when he attempted to contradict McMurtry. To Huscroft, elected politicians in 1981 could not have known how far the judges would go with their interpretation of the Charter.

Huscroft’s argument does not persuade, for the creativity of the legal mind is the stuff of legend. Any politician who did not know that in 1981 rightly deserved a really activist judiciary to save him from himself. It suffices to recall John Dryden’s rhyme: “No written law can be so plain, so pure/ But wit may gloss and malice may obscure.” Dryden did not put the point kindly in his epic poem The Hind and the Panther, yet his point is clear that even the simplest text is capable of taking the legal mind to great depths of thought - and results - beyond the casual view.

This might explain, as Huscroft pointed out, the reluctance of politicians in the U.K., Australia, and New Zealand to give judges the power to override elected politicians on grounds of violation of the bill of rights. The U.K. must be removed from this group of countries, however, since the European Convention on Human Rights (which binds the U.K.) gives British judges exactly the same power that our Charter gives Canadian judges to override elected politicians.

More important is the point that the legal regime of rights protection has not made Australia and New Zealand more just societies than the Charter has made Canada. Since the value of a bill of rights is measured in its ability to protect the weak, it will be hard to argue that minority groups in Australia and New Zealand are better protected than their counterparts in Canada.

It is hard to understand the complaint against a constitutional model that gives judges the power of judicial review over legislation and policies. Many countries with pluralistic societies have bills of rights that give judges that power - from Brazil to India to South Africa. The primary example, of course, is the United States.

Indeed, the power of judicial review over politicians is the very essence of the doctrine of checks and balances. It is also the very essence of the notion of inalienability of fundamental human rights, so underscored by such great international legal instruments as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

Remarkably, the Charter even compromises both ideals by giving the legislature the power to insulate legislation from judicial review in virtue of the notwithstanding clause. That ought to be enough.

Huscroft is, however, more persuasive in his suggestion that it is the perception of judicial activism that might explain the reported preference of many Canadians, according to a recent poll, for an elected judiciary.

Huscroft suggests that Canadians who want an elected judiciary probably feel that way because they want a hand in the power of judicial review by being the electors of the judges. This longing, no doubt, translates into a clamour to subject fundamental human rights to the power of influence over political outcomes.

The old political outcome was the supremacy of Parliament that enabled politicians to legislate as would please their voters. Since the Charter has displaced some of that power, the new allure becomes the power to control (through the ballot box) the judge who interprets the Charter.

It might help to point out that this power of influence over political outcomes is, much like the pet lion, a dangerous animal. Sooner or later the original handler loses control. In the modern democratic process, that danger lies in the power of money in the race to electoral office. This power is typically not in the hands of the average person who dislikes the idea of judges using the Charter to bless a marriage between two men.

In a related vein, it also helps to remember that the Charter is only one corner of the legal territory in which the judicial power is exercised. There are many other areas of the law that might give good old John Smith cause to worry that decisions of elected judges are unduly sensitive to the moneybags that make it possible to win elections.

In the end, the issue really boils down to this: whom would the average citizen trust in making the decision that one finds inconvenient? Is it more tolerable for that decision to come from what Edmund Burke called the “cold neutrality of the impartial judge?” Or from a politician (sitting in Parliament or on the bench) who is presumptively beholden to the more powerful interests that made it possible for him or her to hold office?

Chile Eboe-Osuji is counsel at Borden Ladner Gervais LLP in Ottawa and an adjunct professor at the Faculty of Law, University of Ottawa. He was a former senior legal officer in the Chambers of the International Criminal Tribunal for Rwanda and a former senior prosecutor at the same tribunal.

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