Right to Know: Judicial activism vs. judicial independence
BY SOLOMON FRIEDMAN
JANUARY 17, 2014
In fact, Canadians were privy to a rare display of public dialogue between judges themselves and between judges and the government.
Justice Colin Westman of the Ontario Court of Justice in Waterloo Region was quoted as referring to the government’s approach as a “bully mentality.”
Minister of Justice Peter MacKay responded, saying that he believed that “over time, judges will see the wisdom” behind the government’s new measure. He also stated that he was “a little surprised” at the reaction of the judiciary to the new law and cited the need for judges to “apply the law” as written.
Once again, the age old battle cry of “judicial activism!” was sounded by commentators on both sides of the political spectrum.
Closer to home, East Region judges clashed on the topic as well. One local senior judge invited defence counsel to bring a constitutional challenge and ultimately granted an impoverished accused person decades to pay the surcharge.
Other judges saw things differently. As one Brockville-area judge put it, judges thwarting the will of Parliament amounts to a “recipe for arbitrariness.” While acknowledging the paramount importance of judicial independence, the judge noted that he is bound to “put Parliament’s expressed will into effect.”
There is an age-old tension between legislators — who often characterize the meddling of judges in policy affairs as “judicial activism” — and judges, seeking always to entrench and protect their “judicial independence.”
But what do these phrases mean? And how do they apply to the critical roles played by judges in our society?
“Judicial independence” is a recognized constitutional principle, central to the functioning of our democratic society. It ensures that our judges are able to freely decide cases without any fear of government interference or obstruction.
This guaranteed independence has a number of key features. First of all, judges are entitled to a measure of financial independence from the government. Unlike most other “civil servants,” judges’ salaries are not directly set by the executive.
The salaries for federally-appointed judges are set by an independent commission, made up of one judicial representative, one government representative and one mutually-appointed member. Moreover, judges enjoy security of tenure, and cannot be easily dismissed.
This process works to ensure that judges will not fear for their jobs or their wages should they rule against the government.
Also, judges are granted institutional independence. This means that the government cannot interfere in the workings of the judiciary, including the sittings of the court, the assignment of judges and other matters of court administration.
Finally, Canadian judges enjoy independence in their decision-making. They must be free to decide cases without fear of repercussions for deciding the “wrong way” or hope of favour for deciding the “right way.”
On the other hand, the term “judicial activism” is rarely, if ever, used in the positive sense. It is a common criticism, usually issued by politicians, who view judges as overstepping their bounds — the interpretation and application of the law — and interfering with matters of politics and social policy.
This critique is most often heard when judges rule that laws are unconstitutional and therefore strike them down. Recently, the Ontario Court of Appeal held that mandatory minimum sentences for handgun possession amount to cruel and unusual punishment. The court struck down the three year mandatory minimum sentence which applies in that case.
Last month, the Supreme Court found that Canada’s prostitution laws violate the rights of sex-trade workers to life, liberty and security of the person. The court declared the laws invalid, but gave Parliament a year to enact new, constitutionally valid legislation.
In determining these issues, courts often have to assume a legislature-like approach, weighing competing policy benefits and examining social science evidence to reach a conclusion.
However, this often exposes the judiciary to intense criticism. After all, who gave judges the right to subvert the will of democratically elected legislators?
The answer is the legislature, that’s who. Through the Charter of Rights and Freedoms, Parliament, Canada’s elected representatives, explicitly granted judges the power to declare laws that are inconsistent with the Constitution to be “of no force and effect.”
This was a power granted to judges by the legislators themselves. It was not taken in some coup, bloodless or otherwise. Remember, judges didn’t write the Constitution. Parliament did. Those who would criticize judges who strike down unconstitutional laws are, in effect, criticizing them for doing the precise job that Parliament has required them to do.
The Constitution does not just gently suggest that judges zealously guard against unconstitutional laws — it requires it unequivocally.
If performing one’s legally mandated duty is considered “judicial activism,” then our judges should proudly wear the title of “judicial activist,” without shame or apology.
Solomon Friedman is a partner with Edelson Clifford D’Angelo Friedman LLP. He can be reached at firstname.lastname@example.org or 613-237-2290. Follow Solomon on Twitter at twitter.com/firearmslaw or at his website, www.affordabledefence.com.