[ql06] PUBLIC:Do we want judges with more muscle? Yes
- From: Sheldon Erentzen <sheldon.erentzen@xxxxxxxxxxxx>
- To: QL'06 newslist <ql06@xxxxxxxxxxxxx>
- Date: Thu, 13 Nov 2003 16:29:10 -0500
This is the pro side of the debate that Stan mentioned in class today.
It's pretty straight forward but after reading this and the next posting
of the con side, I'd enjoy a debate over this issue.
Do we want judges with more muscle?
YES: Judges' decisions mean zip unless they're implemented. It's a
principle as old as common law,
says KENT ROACH
Thursday, Nov. 13, 2003
Globe and Mail
Critics of judicial activism have eagerly grabbed hold of the Supreme
Court's Nova Social school decision as yet another example of the
Americanizing influence of Canada's Charter of Rights and Freedoms and
the new and dangerous powers it gives judges. They should read both the
Charter and the decision more closely.
Section 23 of the Charter clearly grants the francophone minority in
Nova Scotia positive rights to minority-language education. Section 24
clearly allows courts to devise remedies they consider appropriate and
just: Language that even the most conservative judges recognized in 1986
gives superior courts a wide and unfettered discretion to fashion novel
remedies for Charter violations.
The Charter became law more than 21 years ago. Opponents of the Charter
should get over it.
They should also read the case more carefully. The trial judge, faced
with a dynamic, complex situation involving five Nova Scotia regions,
did not rush in with a detailed injunction telling the government
exactly how to provide minority-language instruction and facilities. He
proceeded cautiously, requiring the government to make best efforts to
meet certain goals by certain dates and to report to him about progress
and unanticipated problems. This was a far cry from the detailed busing
orders that U.S. judges have used to desegregate schools.
The majority of the court commented at length about the need for courts
not to "usurp the role of the other branches of governance by taking on
tasks to which other persons or bodies are better suited," and "to
respect the relationships with, and separation of, functions among the
legislature, the executive and the judiciary." If anyone deserves to be
criticized as U.S.-style remedial activists, it is the dissenting
judges. They seemed to want to force the trial judge to issue either a
declaration with no follow-up enforcement powers -- or a detailed
injunction that would have placed the Minister of Education in jeopardy
of being fined or imprisoned for contempt. The majority of the Supreme
Court approved of a half-way house between these two extremes, allowing
the trial judge to oversee the steps that the government selected to
comply with the judgment, and ensuring that Nova Scotia francophones
would have continued access to the trial judge without having to raise
the stakes by contempt charges.
The dissenters also downplayed the fact that since the 1985 Manitoba
Language Reference, Canadian courts often retained jurisdiction in
constitutional cases to allow the government to decide on appropriate
compliance and ways of ensuring respect for the rule of law.
Opponents of judicial activism want it both ways. They complain when
courts, like the Ontario Court of Appeal in the gay-marriage case, order
immediate, mandatory remedies -- and they complain when the courts take
a slower, gentler approach that allows the government to decide a
remedy's details. Maybe they just don't want courts to play any role in
our constitutional democracy.
The idea that the case is a novel exercise of judicial power distorts
the history of the law. The idea that rights are only meaningful if
there are prompt and effective remedies has long been part of the common
law and the rule of law. Judges don't hesitate to order managerial
remedies in the commercial law context. Why deprive vulnerable
minorities of the benefits of similar judicial powers?
Kent Roach, a professor of law at the University of Toronto, is author
of Constitutional Remedies in Canada.
Other related posts:
