This article originally appeared in the National Post.
By
Canadians rightly respect their courts. Such respect is foundational to public trust in our institutions and confidence that disputes are resolved fairly. Yet, confidence in the justice system is starting to slip, particularly at the appellate and Supreme Court levels, where decisions increasingly divide Canadians along political lines.
This is not a welcome development.
The central problem is the expansion of the judicial role under the Charter of Rights and Freedoms. The Charter — properly interpreted — can be a valuable contribution because it provides a roster of individual rights that should exist beyond the reach of momentary frenzies of elected majorities. Those rights are legal rights and should be interpreted by the judiciary as such.
But the judiciary’s reliance on the “living tree” doctrine has allowed judges to move beyond interpreting law to effectively making it, undermining the fixed and enduring nature of an entrenched constitution. The result: highly contested public policy questions — once debated in Parliament — are increasingly legislated from the bench.
It’s easy to criticize the judges. But one must also advance a positive agenda for how adjudication should work in our polity today. That’s why we are pleased to introduce the Macdonald-Laurier Institute’s Landmark Cases Council.
This council will bring together several eminent legal scholars to critically analyze Supreme Court decisions. Its goal: shed light on what courts have gotten right, where they have strayed, and how Canadians can reclaim confidence in the rule of law as a predictable, principled guide for democratic governance.
Ordinary Canadians deserve to understand not just the outcomes of landmark cases, but how interpretive philosophies have reshaped the law itself. And they should know how the Charter exists in a broader continuum of liberties and responsibilities, recognized prior to 1982.
At its best, the law should be a stable pillar, applied consistently and predictably, not a shifting product of judicial law-making. Legal adjudication is a highly disciplined activity that should stand apart from the judge’s own moral philosophy. When courts depart from text, history, and precedent, they undermine legal certainty, social cohesion, and democratic legitimacy.
Unfortunately, particularly under the Charter, courts have made such a departure:
- R v Oakes created a proportionality test that arguably asks courts to weigh apples and oranges — individual rights and policy goals — turning constitutional review into a form of policy analysis that blurs the lines between legal judgments and legislative choices.
- R v Nur struck down a mandatory minimum sentence based on a “reasonable hypothetical” — the prospective application of a law to an individual not before the court, and who may not even exist, leading to the striking down of hundreds of sentencing provisions.
- BC Motor Vehicle — the case that launched the Supreme Court’s approach to s.7 of the Charter — has been used to shape everything from bike lanes to drug policy.
In all these cases, the courts have arguably gone astray by failing to appropriately cabin the judicial role, inviting the court to weigh in on policy and consequences. That need not be so.
Importantly, in other areas of law, Canadian judges seem to have a better understanding of their role. Adjudication under the Charter should be no different. Outside of politically charged subjects, hundreds of judges render professional and reasoned decisions across the country every day. Even for its part recently, the Supreme Court has taken a “textual turn” in the way it interprets legislation, emphasizing that courts should not expand the meaning of statutory terms in ordinary cases to account for “new circumstances.” In these areas, there is an understanding of limits to the judicial role.
But this is not the way it has been under the Charter, or in other areas of legal endeavour. The Landmark Cases Council seeks to provide expert analyses of key cases to demonstrate how this is so. It will explain to the public, policymakers, and the bar how these cases misconceive the judicial role, and how they might be decided differently to preserve that role. In all, we seek to explain how courts can and should render their decisions in a manner consistent with the fundamentals.
Canadians need not choose between respect for courts and confidence in democratic self-government — they can and must have both. The Landmark Cases Council seeks to act as a part of a broader mission to show how and why this is, while bringing greater accountability to our legal culture, educating and inspiring legislators to take their roles more seriously, and strengthening public understanding of our constitutional framework.
At a time when trust in legal institutions is under pressure, the council represents an important step toward rebalancing judicial and legislative authority, consistent with our traditions and the rule of law.
Peter Copeland is the deputy director of domestic policy at the Macdonald-Laurier Institute.
Mark Mancini is an assistant professor in the faculty of law at Thompson Rivers University and a senior fellow at the Macdonald-Laurier Institute.
