Monday, February 27, 2006

SCOC Nominee Rothstein Opposes Judicial Activism

SCOC nominee Marshall Rothstein, left, with Justice Minister Vic Toews

Story here. h/t:
Supreme Court of Canada nominee Marshall Rothstein makes his judicial approach clear for Canadians:
"The important thing is that judges, when applying the Charter, have to have recognition that the statute that they're dealing with was passed by a democratically elected legislature, that it's unlikely that the legislature intended to violate the Charter . . . and therefore they have to approach the matter with some restraint.

"But the most important thing is that they apply a rigorous and thorough analysis and if they do that then I'd say that they're doing their job. If they depart from that, it might be a different matter."

Now that's the approach a judge must take for it to appear that the job is being done and nothing more, nothing less. This is important in a country founded upon the values of freedom, democracy and the rule of law, with a Charter of Rights and Freedoms. In the past, judges have taken the liberty of imposing whatever they saw fit and have consistently ignored the Charter or claimed it said something which it actually didn't. Most particularly, judges have exercised "activism" in multitudes of cases involving some of the most controversial social issues of all, effectively transforming much of Canada's social fabric without support from the Charter and without democratic consent either from the people themselves or their elected representatives. Judges aren't elected and are therefore unaccountable; they can act outside of the legal and constitutional boundaries of their duties and get away with it, and they have... many, many times.
This has led to the well-founded belief of many Canadians that we've effectively been living under a dictatorship of the judiciary, at least as far as social matters are concerned. This is frightening as it's necessarily understood that the judiciary has long had the de-facto, unchecked power to elevate some citizens above or lower some below others on the basis of whatsoever they alone deem. This means that judges have the de-facto power to make Canadians unequal under and before the law, notwithstanding the Charter. This growing belief has posed an increasing danger to the viability of the federation, which was originally intended and understood to be founded upon the rule of law, not on the personal beliefs of unelected officials with great powers of authority over all Canadians.
Canadians rightfully expect all judges to leave their personal beliefs completely out of consideration in formulating and rendering their judgements.
Canadians believe in the equality of all citizens under and before the law. Anyone who dares violate this value will subject oneself to the severely unfavorable judgement of history. Conversely, all who uphold equality, freedom, democracy and the rule of law with the utmost consistency and scrupulousness will be favorably spoken of in the future.
Justice Rothstein's statements today are long overdue in coming from a member of the judiciary, particularly the nation's highest court. It must be considered as sending a message to the rest of the judiciary across the federation: no longer is it acceptable or tolerable for judges to rule just however they see fit. Judges must at all times, as scrupulously as possible, adhere to both the Charter and to the democratic decisions of the elected representatives of the people.
I congratulate and welcome Justice Rothstein to the Supreme Court of Canada, which is the rightful property of all Canadians equally and shall always remain so. Let no one impose upon the exclusive jurisdiction of the people.
O Canada
We stand on guard for thee!