Canadian judges increasingly make 'governmental' decisions: Supreme Court justice

‘Before 1982, restraint was hard-wired into the limited role that judges played. Now judges are hard-wired into enormous authority’

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Judges in Canada have been “hard-wired” by four decades of the Charter of Rights and Freedoms to wield “enormous authority,” and they are making decisions that are “increasingly governmental in nature,” according to a sitting Supreme Court judge.

Justice Malcolm Rowe argues that these governmental-type decisions include court rulings that regulate conduct, including in the operation of the economy; allocate public resources; and determine patterns of decision-making by institutions of the state.

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He does not criticize any particular ruling, but said this pattern calls for a reminder of the virtue of judicial restraint. Determining issues like this, he said in a lecture, “removes courts from their traditional role of dispute resolution” and engages them in complex public policy issues, traditionally reserved for legislatures and executives.

“Before 1982, restraint was hard-wired into the limited role that judges played. Now judges are hard-wired into enormous authority,” Rowe said, according to a text of his speech.

He was particularly concerned about judges recognizing “unwritten constitutional principles.” These are often advocated by litigants who see them as giving rise to desirable policies. But few judges have any “experience or meaningful understanding of government,” Rowe said, and the lawyers arguing before them are “a confident bunch, so they plunge ahead unrestrained by concern or doubt.

“Great caution is warranted in such matters. The courts have no authority to amend the Constitution by adding new elements to it,” he said.

Rowe made the remarks at an event in Vancouver Wednesday hosted by the law firm Blakes and the Runnymede Society, an organization of law students. His comments were based on a paper he previously published in the UBC Law Review.

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Appointed to the top court in 2016, Rowe is the first Supreme Court judge from Newfoundland and Labrador. He was both a trial and appeal judge in that province, after a career in private practice and civil service, and lectured in public and constitutional law at the University of Ottawa.

Among his notable dissents at the Supreme Court is the reference case of the federal government’s carbon pricing regime. The court’s majority upheld it, but Rowe joined two other justices in finding it unconstitutional.

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In his lecture, Rowe said the notion of restraint is not about what gets decided, but how it gets decided, and by whom.

“Restraint is not about the content of policy. Rather, it is about which institution of the state makes what policy decisions. Restraint is about institutional relationships.”

He described how legislatures were supreme prior to the Constitution Act of 1982, in which Canada’s foundational laws were patriated, and judges given authority to strike down laws as “ultra vires,” literally “outside the powers,” meaning unconstitutional.

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Prior to 1982, judges interpreted and applied laws, but did not invalidate them, except on division of powers.

“Before 1982, judges accepted that public policy was largely for parliamentarians and ministers, not for them. After 1982, judges had to adapt to their additional public policy role,” he said.

He described the legal culture at the time as a “gentle brake on constitutional litigation.” But as confidence in the Charter grew, legal education and practice became more Charter-oriented.

That changed the outlook of judges, he argued. Before the Charter, judicial restraint was “hard-wired into the system.” Afterwards, it was not. “Now, it is more a matter of outlook, of how one sees the role of the courts.”

His argument draws on modern legal theory as well as classical philosophy, including Plato’s vision of the ideal society in The Republic, and his famous problem, later expressed by the Roman poet Juvenal as “quis custodiet ipsos custodes,” or “Who will guard against the guardians?”

He contrasts the unchecked power of Mao Zedong with the moderate and restrained approach of Nelson Mandela, and argues that the virtue displayed by judges should include restraint.

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He identified three “habits of mind” that he thinks support this goal: pragmatism, the wisdom of experience, and seeing the proper operation of the legal system as an end in itself.

As to the third, he posed this question to judges: “Do you see the law as a means by which to achieve substantive aims, such as greater social justice? Or, rather, do you see the law as a system whose coherence and proper operation is paramount?”

“The nature of the issues remains the same,” Rowe said. “What has changed is who decides those issues. To a greater degree, it is judges who do so.”

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