Who’s Using The Courts Now?

Before the Supreme Court of Canada hearings on the gay-marriage reference in the fall of 2004, a spokesperson for the gay rights movement was already boasting of victory. It had taken twenty years of hard work to get the issue before Canada’s highest court, he said. “What we’re talking about is the culmination of decades of work by many, many people …  bit by bit, law by law.” There were few successes at first, but as cases mounted the breakthrough occurred, initiating “a steady winning streak” (Janice Tibbetts, “Gay Activists Predict Victory,”  National Post 6 October, 2004).

Should the courts be used in this fashion? Should they be a venue for making public policy? What’s happened to the idea that crucial issues of policy should be determined by our representatives in Parliament and provincial legislatures?

Forget this question for the moment.

Let’s consider the fact that until recently the deliberate attempt to use the courts as policy venue appealed primarily to groups on the political left.

Now the political right is interested. It’s an effective way to get things done. Why should conservatives hang back?

In the Chaoulli Decision (2007), John Carpay of the Canadian Constitution Foundation effectively challenged Canada’s health care monopoly. According to Wikipedia, the ruling has brought much of the current Canadian public health system into question.

Why should libertarians hang back? MP Scott Reid and MPP Randy Hillier, both from Lanark County, have founded an organization, appropriately called the Lanark Society for the Advancement of Democracy, Property and the Common Law, to help elected officials of a libertarian or classical liberal bent to take “projects to expand the cause of freedom” beyond the conceptual stage. The goal is to identify policy ideas and to put them into action, “whether in the form of draft legislation, a regulatory change, or a court action.”

The Lanark Society. Sounds interesting! A society devoted to expanding liberty is welcome. Needed!

There’s one worry. What’s intended by “court action”?

I understand from the prospectus that as an immediate project the Society is thinking of “constitutionalizing” property rights. But what does that entail? Are they proposing to amend the Charter? Are they proposing to give our greedy judges a juicy new “right” to interpret?

Traditionally, courts protected citizens from government; they carved out an area of rights, which defined the citizens’ freedom. No longer. Activist courts interpret Charter rights to extend government’s reach, shrinking freedom. To my mind conservatives and libertarians should be wary of policy-making via the courts. But I’m sure the Lanarkists will think things through.


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