The announcement by two of the judges on the Supreme Court of Canada of their proposed retirement provides the opportunity to reflect on the role of judges in Canada. This is especially important since judges have assumed a powerful and influential role under the Charter. The latter allows Judges using the broad and vague words in the Charter to rule on the merits of legislation, creating new laws and social policies. The vivid reality is that these Charter decisions are highly contingent on socio-political choices which the courts have been able to determine by applying, for example, the broad words of Section 7 of the Charter, (Everyone has the right to life, liberty and security of the person”) and Section 15 (the Equality provision). These words mean whatever the judges want them to mean. That is, the broad words of the Charter have enabled the judges to promote their own, private, political attitudes and preferences, claiming it is for constitutional reasons.

Unfortunately, judges are ill positioned to make public policy decisions because they have limited access to social data and depend on the biased arguments of the litigants and unreliable information in the media. Isolated from society, judges are not exposed to differing perspectives, as occurs in Parliament, since there is no public debate. In short, judges may not be cognisant of all the relevant facts in a case.

This was illustrated in the Supreme Court hearing in May on the Vancouver Drug Injection Site. Advocacy groups, had lobbied for the establishment of the Vancouver injection site, and have, despite a conflict of interest, published over two dozen positive studies about the facility. All these studies have been peer reviewed only by those who support harm reduction, which presupposes that addicts will not stop using drugs. Significantly, the researchers have refused to release their data so that other researchers could verify their results. Notwithstanding their lack of credibility, the mainstream media has reported these studies without context or caveat, presenting their conclusions as fact.

One of these advocacy groups released a strategically timed “scientific study”, during the week of the Supreme Court of Canada hearing. This study concluded that the drug injection site had reduced the deaths from drug overdose by 35%. This finding however, is directly contradicted by the British Columbia Vital Statistics Report, which stated that deaths from drug overdose have increased each year in the site area (with one exception) since the site opened in 2003.

Two Ontario newspapers published editorials the week of the hearing in support of the injection site, and referred to the supposed fact that the drug injection site had reduced deaths from overdose by 35%.

Not having any other background information, the Supreme Court judges appear to have been taken in by this questionable information. This conclusion is based on the comments made by some of the judges during the hearing. For example, one judge stated bluntly, “lives are being saved, diseases are being prevented by this site…”. Another judge stated “ in the end this program …, works.” Have you got anything that tends to demonstrate that this program doesn’t work?” he added.

Evidence had been introduced by the federal government that Insite was not working, but, the judges appeared to have ignored or overlooked this evidence.

Thus, a handful of politically appointed lawyers (only a majority of five is necessary) sitting on the Supreme Court, with no special knowledge or particular insight on an issue, and with no accountability and based on uncertain information, can fundamentally change Canadian laws on so-called “constitutional grounds”.

In fairness, judges can reasonably argue that they have been handed the authority to make public policy decisions under the Charter by Parliament (although not by the provincial legislatures). Nowhere however, have the judges been given the specific authority to boldly amend legislation, by striking down, writing in or writing out words and expressions, as well as re-interpreting legislation to give it meaning never intended or agreed upon to by the legislators, but, conveniently, in accordance with the judges’ own private political attitudes and preferences The judges have assumed themselves the authority to make these dramatic changes to legislation.

It seems reasonable, therefore, that appointments to the courts should be based on the integrity, experience and knowledge of the candidates. Also, very importantly, it should be based on the willingness of the candidates to remain neutral, which can often be determined by their judicial history, indicating that they take a deferential approach to legislation passed by Parliament.

June 20, 2011