Paul Jalsevac
The Interim

Conservative leader Stephen Harper recently set forth a vision in which the Supreme Court would return to its traditional role, one focused on applying rather than making law. “My view is that the role of the court is to apply the Charter to protect the rights laid out in the Charter,” said Harper. “The role of the court is not to invent rights that are not in the Charter.”

Rory Leishman of the London Free Press told The Interim that Harper is simply “advocating a return to the traditional division of powers, to the idea that the courts should stick to adjudication and the elected representatives to legislating. This historic division of powers is the very key to democratic government.”

Liberal campaign strategists, however, accused Harper’s Conservatives of attempting to “implement their radical social agenda by filling the recently vacated spots with conservative jurists.”

But Harper has pointed out that his view is a response to the Liberal government’s long history of stacking Canada’s courts with liberal-minded judges in a covert effort to legislate same-sex marriage. “They didn’t want to come to Parliament,” he said. “They didn’t want to go to the Canadian people and be honest that this is what they wanted … They had the courts do it for them, put the judges in they wanted, then they failed to appeal, failed to fight the case in court.”

Harper’s alternative approach to the judiciary would narrow the activist role of judges and emphasize the lawmaking role of Parliament. “The idea of adjudicated rights is an important development in our political system. It’s one that I support in principle. But, to make it work, we’ve got to make sure that we have courts that apply the law, not courts that apply their own criteria, ” Harper said.

Phil Horgan of the Catholic Civil Rights League agrees. “Let Parliament do it’s job,” he told The Interim. “The proper dialogue between the legislature and the judiciary can’t occur when the legislature is told to put a sock in its mouth!”

Harper’s suggestion is not new. Leishman explained that until the enactment of the Charter, members of the judiciary, including those on the Supreme Court, habitually deferred to Parliament. Judges occasionally struck down laws, but only on the ground that they violated the distribution of powers.

Then Supreme Court Justice William Rogers McIntyre emphasized the importance of the division of powers in a dissenting opinion he wrote in the 1988 Reginav.Morgentaler decision. He explained, “It is for Parliament to pronounce on, and to direct, social policy. This is not because Parliament can claim all wisdom and knowledge, but simply because Parliament is elected for that purpose in a free democracy.”

An Ottawa Citizen article suggested that Harper would have a difficult time finding right-minded judges to fill the position. Leishman explained, however, that judges in the past, including previous Supreme Court justice John Sopinka, have been chosen from the ranks of the academia and other members of the legal profession. There are many individuals in these ranks who have the experience and the proper understanding of the role of the judiciary to fill the position.

Harper has said he would begin the process by looking at a “parliamentary committee approach” to give MPs a greater say in judicial appointments.

Chief Justice Roy McMurtry of Ontario recently said in a speech to the Saskatchewan Bar Association that the courts must be “crusaders for a new consensus” when people don’t support “fundamental values” represented by the Constitution.

“I think we are very powerful … We are becoming the new priests of civil society, in a way, because we are making decisions about same-sex marriage, … about euthanasia and abortion … We have now become an instrument of governance, in the wide sense of the word. We are defining the fundamental socioeconomic values of the society,” said Chief Justice Michel Robert of Quebec in a recent interview with Lawyers Weekly