Note: Brian Giesbrecht, a retired judge, is a senior fellow at the Frontier Centre for Public Policy.
Leaks from the Prime Minister’s Office concerning what was a potential appointment of Justice Glenn Joyal, Chief Justice of the Manitoba Court of Queen’s Bench, to the Supreme Court of Canada highlights differences between the treatment of judiciary appointments in Canada and America.
Why do Canadians not pay more attention to appointments to our highest court given the impact the Charter of Rights has on our democracy?
Who sits on the U.S. Supreme Court is of crucial importance there. Their ‘Supremes’ rule on the constitutionality of virtually everything important. Who is or is not appointed to their highest court can have a profound influence for decades. The most significant legacy of the Trump administration may be a “conservative” Supreme Court.
Canadians have never been much interested in who sits on our top court. That is because — until 1982 — the personal views of judges didn’t matter all that much. Their main role was to interpret laws passed by elected representatives. This changed fundamentally when the Charter of Rights came into being. Now, a judge’s personal views became extremely important. Many issues formerly decided by politicians are now decided by our courts.
Judges fall generally into two camps. Those who could be called “conservatives” feel judges should be reluctant to become involved in matters that had, formerly, been dealt with by the peoples’ elected representatives. Judges in the other camp are generally more “activist,” or “interventionist” and more inclined to intervene and make new law.
An example of an “activist” decision was the Supreme Court’s Haida Nation case. In 2004, a decidedly activist Supreme Court literally invented a duty to consult Indigenous communities whenever development is being considered on any lands considered to be part of their “traditional territories.” Today’s stalled pipelines and other development opportunities are one result. The Haida Nation example of judicial activism has proved to be a job-eating monster.
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