THE LAW

Martha Steward's Juiced-up Judiciary

by Peter McKnight, columnist for the Vancouver Sun- November 27, 2003

I might be paranoid, but I really think the Supreme Court of Canada is out to get me. After all, I've been one of the few journalists who has consistently defended the court against accusations of judicial activism, accusations I've always believed are specious and based on ignorance of the court's role under the Charter of Rights.

So how does the court repay me? Why, it decides to increase dramatically the judicial power by allowing judges to order government officials to appear before them and prove they're following the judges' orders. The case at issue concerned minority language rights in Nova Scotia. Four years ago, Justice Arthur LeBlanc of the Nova Scotia Supreme Court held that the provincial government of Nova Scotia had violated the Charter by failing to build French-language schools. Consequently, Judge LeBlanc ordered the province to quit dragging its heels and ensure the schools were operational by a specified date.

So far, so good. The Charter requires governments to provide schools for English-and French- language minority groups in each province, and Judge LeBlanc acted appropriately in ordering schools to pick up the pace. But like a gambler on a lucky streak, the good judge was unable to quit while he was ahead. Instead, he order government officials to attend "reporting hearings," wherein they would advise Judge LeBlanc of their compliance with his order.

The order to attend reporting hearings, which was struck down by the Nova Scotia Court of Appeal but reinstated by the Supreme Court, represents a dramatic departure from the traditional role of the judiciary. Although courts are still working over their roles under the Charter, the doctrine of functus officio says that once a court makes a decision, that's the end of its involvement in the matter. Yet by retaining jurisdiction in the case after making his order, Judge LeBlanc granted himself power to involve himself in public administration. In fact, although the nature of the hearings was never clear, Judge LeBlanc ultimately reinvented himself as the Martha Stewart of the judiciary, as he preside over discussions concerning such picayune matters as how to renovate the school buildings.

Now Judge LeBlanc might have impeccable taste, but you don't have to be one of the Designer Guys to realize that he was not professionally competent to deal with such matters. Nevertheless, the Supreme Court approved of Judge LeBlanc's actions. The court seemed primarily concerns that if the province continued to delay building French schools, the French minority would be assimilated and then it would be too late to protect their constitutional rights. Yet there's no evidence Nova Scotia would have continued dragging its heals after being ordered to speed things up. The court even admitted that governments generally follow the judicial orders:" Canada has had a remarkable history of compliance with court decisions.. by all institutions of government." And even if Nova Scotia proved to be an exception and failed to follow the order, contempt-of-court proceedings could be brought against the province, which would likely be at least as effective in ensuring compliance as Judge LeBlanc's reporting hearings.

By approving the hearings, the Supreme Court seems content to give judges inappropriate powers. This is judiciary on steroids, and there's no telling what havoc juiced-up judges will wreak. But there is hope. The court split 5-4 on the judgment, with the minority arguing, correctly in my opinion, that the reporting hearings violated the constitutional separation of powers between the executive and the judiciary. Further, since the recently retired Justice Charles Gonthier was a member of the majority, the court is now split evenly, and this most recently appointed justice- Morris Fish, who was not involved in the decision- now holds the swing vote. Judge Fish will have the chance to start swinging soon, since several similar cases are headed to the court, including an appeal of the B.C. Court of Appeals' decision ordering the province to pay for autism therapy.

If the court is to redeem itself- and me- Judge Fish must tip the scales and just say no to a juiced-up judiciary.