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Judicial Activism

We currently have a Chief Justice of the Supreme Court of Canada that has, on several occasions, weighed in on political matters, both domestic and foreign. This is highly innapropriate behavior for the Chief Justice, and it creates a precedent for other judges to, similarly, behave innapropriately.

Under British Common Law, the legislature writes the laws, two advocates, or lawyers, argue for or against an infraction of the law, a single adjudicator, or judge, referees the rules of the courtroom, and a jury of twelve citizens determine the validity of the infraction. Their ruling, then, becomes appended to the law, in which case it becomes a precedent. Unfortunately, Canada no longer follows British Common law for a host of reasons.

First, the independence of the jury to inquire, investigate, and to reach their own decision has been undermined. Juries are often discouraged from asking questions, relegating this power, instead to the judge, with judges often instructing the juries on what they can and cannot take into consideration. Second, since 1982 and with the ratification of the Charter of Rights, judges have begun bringing their politics into the court room and have cleverly concealed them under the guise of an ever growing list of rights, such as minority rights, LGBTQ rights, and even climate rights. The judges have, thus, turned into executive legislators, writing law from the bench. Finally, and again since 1982, for reasons that are not fully clear, judges have simply chosen to ignore all precedent prior to 1982, but particularly case law which favors individual rights, such as the English Bill of Rights.

Unfortunately, this problem is not one which can be immediately solved through legislation, however, there are some short and long term solutions. In the short term, the judiciary can be instructed to strictly interpret and not to create the law. As an added insurance, the Canadian Judicial Council, which is currently a self regulating body, must be chaired entirely by citizens so as to ensure compliance. To further diminish the arrogance of the court, their ability to set their own rules, as was the case with vaccine mandates, should be revoked. In the long term, the Prime Minister's ability to unilaterally appoint judges should be scaled back, and they should be sent to the legislature for confirmation. As a final safeguard to prevent a majority government pushing activist judges through, every Premier should also get a vote, and judges must obtain 51% majority to be successful. In addition to this, the legislature's ability to impeach judges who operate beyond their mandate by, for example, writing law from the bench, should be more frequently exercised. Finally, the possibility of electing judges should also be explored.

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