Mar 28, 2012
Responding to James Morton:
You say "Judges shouldn’t be making social policy." I respond that the policy was already made by legislators, and that judges are merely enforcing it.
The policy was created when the Constitution Act was passed in 1982. This was not an act of the judiciary, but of the various parliamanets that constitute (most of) Canada.
When a judge requires a legislature to abide by the provisions of the constitution, he or she is not "creating policy" as you suggest but rather enforcing policy already created, which is his or her job.
If Parliament wishes to change these policies - and thereby make abortion, gay marriage, medical marijuana and the rest of it illegal - then it has the option and obligation to pass laws to that effect, laws passed not with a simple majority, but with the weight of a majority sufficient to amend the sonstitution.
Or, under Canadian law, they could simply invoke the 'notwithstanding' clause of the constitution, freely enacting their preference, but at the pain of a public acknolwedgement that such legislation is congtrary to the Charter of Rights and Freedoms.
Constitutional democracies are designed precisely this way - as you well know - in order to prevent the day-to-day tyranny of ther majority expressed against minority groups.
Arguments under the heading "Judges shouldn't be making social policy" are code for "we want legal enforcement of laws addressing minorities." Such laws have a long and sorry history in countries without the protection of constitutional law.
What prevents the government of the day from enacting laws that promote some or another 'majority value' is not judicial activism, but the requirement under the constitution that a government determined to repress a minority be clear and consistent about such practices.
What causes legislatures to "run for cover" from such frank admission of their motives is the realization by a broad cross-section of Canadians that laws applied against one minority could easily be applied to others.
A government that bans abortion could also be moved to ban contraception. A government that bans gay marriage could also be convinced to ban interracial marriage. We know from experience that the oppression of minorities leads to abuses of historic proportions.
We are all minorities, in one way or another. We should therefore be cautious when using language that is code for the repression of minorities.