Western Standard
email print

Face-off: Order in the courts

Are judges overstepping their bounds when they overrule the government's laws?

Michael Coren and Karen Selick - August 8, 2005

From: Karen Selick
To: Michael Coren
Date: July 4, 2005 8:56 AM
Subject: Can the courts be curbed?

When the Supreme Court struck down Quebec's monopoly health insurance laws in Dr. Jacques Chaoulli's now famous lawsuit, several conservative commentators--although pleased with the result--nevertheless bemoaned more "judicial activism." Let's be clear. Canada's Constitution, the supreme law of the land, recognizes our rights to life, liberty and security of the person. A subordinate Quebec law threatened those rights. When provincial laws conflict with the Constitution, judges are perfectly correct to strike them down. That's their job. Admittedly, there have been several inexcusable examples of the court overstepping its role-- primarily by "reading in" words that aren't in the Constitution. But much of what conservatives deplore arises from a crappy Constitution. It explicitly entrenches the leftist, statist ideology rampant among the politicians who wrote it. So those who extol the supremacy of the legislature are deluding themselves if they think curbing judges will help much. What's needed is a comprehensive philosophical revolution, encompassing judges, politicians--and the electorate.

From: Michael Coren
To: Karen Selick
Date: July 4, 2005 11:43 AM
Subject: re: Can the courts be curbed?

No, what we need is a return to the separation of powers and a severe limiting of the influence and prestige of lawyers. What you are proposing is, ironically, a quintessential lawyer's response to the problem of legal activism. The Constitution was not written by politicians, and certainly not by the Canadian people, but by lawyers. Those who were MPs were mostly lawyers by training and those who were not were told what to say and do by, yes, lawyers. It was lawyers, bursting with self-importance, who told us that we needed a charter and a Constitution in the first place. The prime minister appoints to the Supreme Court judges he knows will support his views, thus making legal activism more significant than the popular will. We should scrap the charter, make all major court appointments open to extensive parliamentary scrutiny and use the notwithstanding clause proudly and aggressively.

From: Karen Selick
To: Michael Coren
Date: July 4, 2005 2:22 PM
Subject: re: Can the courts be curbed?

What an ill-informed rant. If you scrapped the charter, you couldn't use the notwithstanding clause. It's part of the charter. Try reading it, Michael. Secondly, lawyers aren't some special subspecies schooled in wickedness. They're part of the general culture. They imbibed the same "there-oughta-be-a-law" philosophy from their kindergarten teachers and preachers as the future farmers or factory workers seated next to them. That's precisely why a philosophical revolution is necessary, so that everyone--lawyers, teachers, clergymen, farmers and factory workers--will understand the real problem. Separation of powers is desirable, but overall limitation of powers is crucial. Today's prevailing mindset is that every perceived problem can be solved by one branch or level of government or another. People must understand that the powers and scope of government--whether federal, provincial or municipal, whether legislative, judicial or executive--must be strictly subordinated to the freedoms of individuals. With fewer, simpler laws, students would have to choose other occupations.

From: Michael Coren
To: Karen Selick
Date: July 4, 2005 3:48 PM
Subject: re: Can the courts be curbed?

Poor Karen. It must be so difficult being so angry so often. You're obviously right about lawyers not being a "subspecies schooled in wickedness." Hey, you're a lawyer and you're not . . . well, let's move on. This isn't some fairy tale where if we wish for something hard enough, it will suddenly come true. The fact is that the state does exist and it can be governed by the separation of powers. This worked, in fact, for 200 years. It was only when the courts became overly powerful that the legislature and the executive became relatively impotent. If you knew the facts about, for example, the same-sex marriage issue, you would know that zealots directed their energies to law schools and big legal firms only after they had lost the battles in the federal and provincial parliaments. Lawyers are not evil, but too often they have become conduits for evil policies.

More articles by Michael Coren and Karen Selick