How did Canada get stuck with Doug Ford? Blame activist judges.
Ontario Premier Doug Ford speaks at the Ontario Legislature in Toronto last week. (Chris Young/The Canadian Press via AP) September 19 at 3:43 PM
As Americans sit captivated by the uncertain fate of Supreme Court nominee Brett M. Kavanaugh, Canadians are forced to grapple with an uncomfortable fact: If any recent nominee to their own Supreme Court had skeletons in his closet, they likely went unknown.
The U.S. system of judicial appointment subjects federal nominees to an adversarial screening process in which legislators are given the opportunity to investigate, question or even reject candidates. By contrast, the Canadian system â" which in 2010 received a failing grade from the good governance w atchdog Global Integrity â" is crude and unilateral. The prime minister appoints judges he wants, subject to no cross-examination or veto.
Frustration over judicial unaccountability reached new heights last week after Ontario Premier Doug Fordâs decision to evoke the Canadian constitutionâs Section 33, also known as âthe notwithstanding clause,â to shrink the size of Torontoâs city council. The rarely used power allowed him to overrule a judge who had declared such legislation unconstitutional.
âWeâre taking a stand,â Ford said. âIf you want to make new laws in Ontario or in Canada, you first must seek a mandate from the people and you have to be elected.â On Wednesday, Ford received a victory when the initial court ruling was stayed, pending appeal. Yet in declaring his government âprepared to use Section 33 again in the future,â a precedent had nevertheless been set.
When Canada added a Charter of Rights and Freedoms to its constitution in 1982, based on the U.S. Bill of Rights, some grumbled about âAmericanizatio n.â Out went traditional English notions of âparliamentary supremacy,â in came the U.S. concept of judicial review.
But the Americanization stopped halfway. In the United States, the judicial branch is empowered to declare the actions of other branches unconstitutional, but the executive and legislature also exert democratic oversight of the judiciary by controlling who gets on the bench. No such checks came to Canada.
Judge Kavanaugh is a man with a political philosophy, and President Trump is not oblivious to it. Scorn for such âpoliticizationâ of the judiciary has long been a favored tactic of Canadian defenders of the status quo. Yet in any system of judicial review, judges cannot help but act politically, given that much of their job is interpreting ambiguous constitutional text.
Apologists cite the fact that Canadian judges easily reach consensus as proof that Canadaâs judiciary has no guiding ideology beyond neutral interpretation of law. Canadaâs Supreme Court in particular rules unanimously on virtually everything. Such rulings have hardly been neutral in outcome, however.
High court decisions reliably adhere to the platform of mainstream Canadian liberalism, if not the Liberal Party proper. This includes a permissive attitude on matters of drugs and sex, a skepticism of unrestrained free speech and religious liberty, sympathy to expansive assertions of indigenous rights, a bias toward compassion over punishment, and hostility to reform of governing institutions.
Wildly different forms of judicial logic are used to arrive at these outcomes. Sometimes, as in a recent ruling upholding interprovincial barriers to liquor trade, broad deference is given to the legislature. On other occasions, the court shows little hesitation dismissing the objectives of elected politicians, as in a 2013 ruling overturning Ottawaâs prostitution laws. Sometimes the constitutionâs words must be interpreted with changing times, as when the documentâs promise of a âright to lifeâ was read to allow assisted suicide. Other times strict âoriginalismâ is in vogue, as when the Supreme Court said it would be unconstitutional to hold Senate elections as that would defy the framersâ elitist wishes.
The predictability of such rulings is best blamed on ideological uniformity within Canadaâs legal establishment. Judges appointed by Conservative prime ministers, after all, seem to rule in a fashion indistinguishable from those chosen by Liberals. It is unclear to what extent prime ministers are even in full control of the appointment process these days, given the degree their judicial choices are puppeteered by âJudicial Advisory Committeesâ dominated by elite representatives of Canadaâs lawyer community.
Conservatives deserve ample blame for this state of affairs. When a 2015 story in the Globe and Mail alleged (on rather thin evidence) that Prime Minister Stephen Harper had âremadeâ the federal judiciary in his ideological image, many conservatives were aghast that any journalist would make such a nasty allegation. Republicans would consider it a compliment. Since there is no Canadian Federalist Society seeking to bring a conservative perspective to Canadian legal questions, conservatives often internalize the narrative that an identifiably conservative legal philosophy shouldnât exist.
Amid such malaise on the right, Premier Fordâs decision to evoke Section 33 of the constitution was inevitable. Legislative vetoes of judicial rulings remain the last hope of conservatives seeking reprieve from progressive judicial activism, of which the Toronto council ruling was a particularly appalling case study.
Aware of this, Canadaâs legal hive mind has spent decades attempting to paint the ânotwithstanding clauseâ as taboo or de facto lapsed. An open letter signed by 80 Canadian law professors predictably declared Fordâs move âdeeply troubling.â As the Macdonald-Laurier Instituteâs Sean Speer noted, this âsays more about the state of legal education in the country than it does about the origins and purpose of S.33.â
Premier Ford is being portrayed as a reckless bully, a man so stubborn and proud he sees no problem resorting to unprecedented constitutional gimmicks to get his way on even the most middling matters. There may be truth to this. It would be nic e, however, if Canadaâs legal establishment could display a shred of introspection at their own role in getting us here.Source: Google News Canada | Netizen 24 Canada