https://torontosun.com/opinion/columnists/goldstein-ford-is-fighting-the-court-party
The Charter — ironically enough created by politicians — has enormously increased the power of our judiciary not only to judge laws passed by Parliament and legislatures, but to remake them in their own image, as well as use the Charter inappropriately to strike down laws they disagree with.
This transformation of our courts has been aided and abetted by a broad coalition of special interest groups, many government-funded, university academics, particularly in the law schools, human rights commissions, trade unions and media, all sympathetic to the expansion of judicial power to remake society in ways they could not achieve through the ballot box.
Political science professor Ted Morton of the University of Calgary, a former MLA and cabinet minister in Alberta’s Conservative government from 2004 to 2012, has described them, collectively, as the “Court Party,” an informal but powerful alliance of like-minded interests, who support the “judicialization of politics,” including lobbying governments to appoint activist judges from the ranks of the Court Party.
The Court Party has been shouting the loudest about what Ford has done, describing it as an attack on democracy.
This even though the notwithstanding clause was included in the Charter at the behest of the provinces for the very reason Ford is now citing, as a check against judicial power inappropriately interfering with the ability of legislatures to make laws, and without which the Charter would not have been approved.
Bizarrely, some of the criticism has come from the same politicians who agreed to the inclusion of the notwithstanding clause in the Charter, which Ford is using precisely as the Charter describes in Section 33.
This is not, as Morton wrote in a superb National Post column on Friday, because they particularly care about the size of Toronto council.
Rather, “their real fear is that Ford’s use of the notwithstanding power will set a precedent that legitimizes its use by other governments. If the government of Ontario can use the (until now rarely used) notwithstanding power to defend policies it deems important, why can’t Alberta or Nova Scotia? The stigma of being an outlier will be removed.”
“The political left in Canada has been very successful in using the courts to win policy battles that they can’t win in fair and free elections. The list of policies that have been dictated by judge-made law is long: abortion, same-sex marriage, physician-assisted suicide, Aboriginal rights, immigration and refugee determination, judicial salaries, Senate-reform, prostitution, collective bargaining. But whatever is next on their policy shopping list could now be in jeopardy.”
I also recommend a 1992 paper Morton wrote for the Osgoode Hall Law Journal, “The Charter Revolution & the Court Party,” based on themes later elaborated in his 2000 book of the same name, co-edited with Rainer Knopff.
As Morton explained a decade after the Charter was approved:
“The adoption of the Charter of Rights and Freedoms in 1982 has transformed both the practice and theory of Canadian politics. It has replaced a century-old tradition of parliamentary supremacy with a new regime of constitutional supremacy that verges on judicial supremacy. Judges have abandoned the deference and self-restraint that characterized their pre-Charter jurisprudence and become active players in the political process.
“Encouraged by the judiciary’s about face, interest groups — many funded by the very governments whose laws they are challenging — have increasingly turned to the courts to advance their policy objectives. The Charter has made the court room a new arena for the pursuit of politics.”
That’s the reason Parliament and provincial legislatures are today constantly challenged in the courts by members of the Court Party, seeking rulings by sympathetic, activist judges inappropriately using the Charter to interpret or strike down laws they disagree with.
Indeed, even many critics of Ford’s government agree that’s what happened to his Progressive Conservative government’s bill to downsize city council from 47 members plus the mayor, to 22 members.
I believe Ford should have run publicly in June’s Ontario election on downsizing Toronto council in 2022, not announced it after the fact in the middle of the 2018 municipal election campaign.
But I also believe judges should not twist the Charter into pretzels to justify rulings which inappropriately interfere with the legitimate powers of the legislature.
