A pro-life senator is taking a small but significant step to combat what she claims is a drift toward “judicial
activism” on the part of Canada’s high court officials. Liberal Senator Anne Cools led the opposition to Bill C-16, a proposed amendment to the Criminal Code which would require police to obtain special arrest warrants when seeking to apprehend some suspects.
In addition to opposing certain details of the proposed amendment, Cools is particularly distressed with the origins of the legislation. The bill was thrust upon Parliament by the late Supreme Court justice John Sopinka, who felt it would fill a gap in the Criminal Code. Sopinka was responding to the overturning on a legal technicality of a British Columbia man’s murder conviction, despite overwhelming evidence the man had committed the murder.
The Supreme Court not only suggested that a new arrest warrant law was in order, but it also set the parameters and established a timetable for Parliament to pass the legislation.
Although the bill was approved by the Senate December 17, Cools’ fight against court officials encroaching on the rule of Parliament is far from over.
Cools says Bill C-16 is the latest example of the judiciary’s usurping of the Parliamentary prerogative. She also believes Canada’s traditional democratic principles are under attack from judges who, while remaining free of the whims of the voters, are using their privileged positions to formulate public policy.
Cools sought amendments to Bill C-16 to slow an otherwise speedy passage through Parliament. She told fellow senators December 10 that the bill is “inherently repugnant” in principle and context, and succeeded in holding up its passage in the Senate beyond the November 22 deadline imposed by Sopinka.
“This (Bill C-16) is a dictate, a command, from the Supreme Court of Canada,” Senator Cools said. “Judicial legislative-making is anti-democraticdemocratice and subversive of Parliament. The oldest principle and rule of law of judicial review is that where and when the law is silent, so must the judges be silent. Judges must stand aside and let current democratic parliamentary majorities rule … No wish of the Supreme Court is superior to the Criminal Code of Canada or of Parliament’s will.”
Previously in Senate debates, Cools described Bill C-16 as “a new and aggressive leap in judicial activism.”
Senator Cools’ opposition to Bill C-16 underscores a long-standing debate that has raged since the Canadian Charter of Rights and Freedoms was enacted in 1982. At the time, many feared that by subjecting legislation to the charter, the unelected justices of the Supreme Court become superior to Parliament.
Many critics believe the Bill C-16 example has exacerbated the situation. Now, in addition to having legislation subjected to judicial review, some court officials have taken it upon themselves to impose legislative initiatives on Parliament.