Criticizing the court

Canada's Supreme Court sits in an imposing building overlooking the Ottawa River. Nine of this country's brightest legal minds sit on the court, writing decisions that can fundamentally change the direction of this country.

Their decisions cannot be appealed. At times, they force governments to re-write legislation, such as the recent prostitution bill. But while those governments sometimes accuse the court of playing an activist role, they also defer to it when making tough decisions, for example, on Senate reform. For the most part, the court is treated with reverence. 

But Emmett Macfarlane says that's not the way it should be. He says shielding the court from criticism is undemocratic. Macfarlane says the court makes some of the most important decisions in this country, but they are not decisions where there is only one right answer. Since that's the case, rulings should be open to debate and criticism in the public sphere. 

We're dealing with nine very smart people, but nine unelected people, who don't actually answer to a lot of accountability and in that respect, public criticism is very important.- Emmet Macfarlane

Macfarlane also takes issue with the way politicians defer to the court. If parliamentarians engaged more with the Charter, they wouldn't have to criticize court decisions after the fact-- because matters wouldn't have ended up in the court's hand. He cites assisted suicide, the right to strike, and prostitution as recent court decisions where the government should have had say in policy. 

I think what we see too often are politicians strategically and intentionally allowing the court to take the heat for tough decisions, divisive issues that they don't want to expend the political capital to address.- Emmett Macfarlane

He has some advice for whichever party forms government after the next election. He'd like to see a process like those in the U.K. and Australia, where proposed legislation must be scrutinized through the eyes of the charter, and cabinet ministers have a duty to speak to the constitutionality of the legislation he or she is representing. If that happened, he says, the ground would be set for better debate over the charter and the role of the court.