Judge should not play politics

THE Federal Court of Canada has exhibited a tendency to make judgments that have no practical effect and could lead to political mischief.

In 2006, a judge of the Federal Court made a decision that purported to overrule the Gomery Inquiry, which found former prime minister Jean Chrétien should bear some responsibility for what occurred in what has become known as the sponsorship scandal.

The court ruling had no legal effect. Canadians who did blame Chrétien were still legally entitled to do so, and those who believed him blameless had no way of enforcing their opinion.

Now a Federal Court judge has made a declaration to the effect that the minister of agriculture broke the law when he introduced legislation terminating the monopoly status of the Canadian Wheat Board, which status only exists by virtue of legislation.

The Federal Court decision does not make the statute itself illegal, and the consequences of the ruling can only be determined by the Canadian people.

In plain words, the declaration is of political effect only.

It was once the accepted jurisprudence that the courts would not make declaratory judgments that had no practical effect. It was also the case that the courts were reluctant to make rulings based on hypothetical facts. Apparently, those perfectly desirable principles have gone by the board. The courts are now being prevailed upon and apparently are accepting the role of making political decisions.

Proof of the political effects of these decisions is evident in the reaction of the opponents of the government. The wheat board itself, which initiated the litigation, and supporters of the wheat board are jubilant. Some are even suggesting the government can be forced by court injunction to withdraw the bill.

They apparently do not realize the danger of subverting our democratic process so a single judge will govern the country rather than our elected representatives.

The dilemma is not without historic precedents. When Franklin D. Roosevelt was elected president of the United States, he proceeded to get Congress to pass what was termed New Deal legislation. This tended to be progressive or some would say left-wing.

In several cases, the Supreme Court of the United States ruled New Deal legislation to be unconstitutional and consequently of no legal effect. Roosevelt and his supporters were furious. They did not praise the court for bringing the government to heel. On the contrary, Roosevelt claimed he had the power to appoint more judges to the Supreme Court and threatened to pack the court with friendly judges.

By some magic, the decisions of the court became less confrontational and the stacking threat was not proceeded with.

A Canadian example would also be a appropriate. In the mid-1960s, when the Pearson government was dragged kicking and screaming into making medicare a national plan, the provinces of Alberta and Ontario contemplated taking the government to court and challenging the constitutionality of the legislation.

They argued the plan was an unlawful intrusion by the federal government into a field of provincial jurisdiction. This was a legitimate argument. In fact, it was a stronger argument than the one now being advanced by the wheat board.

Can you imagine the reaction and screams of anguish that would have emanated from those who now praise the courts if there had been a successful challenge to the medicare legislation?

Would they have said the courts were right and medicare, on a national basis, was against the law because a judge said so?

It is astonishing to see some of the exorbitant credibility being given by some to the decision of a single judge of the Federal Court and how it is being used to attempt to undermine the decision of a democratically elected Parliament responsible to the people.

The judge could be wrong and his decision is being appealed. Ultimately, Parliament will have its way and the appeal may be redundant, except for its value as political window dressing.

There are nine judges on the Supreme Court of Canada. Some decisions of the Court have resulted in a five to four split. Can we really be satisfied that the four dissenting Supreme Court Justices do not properly understand the law? Of course not. It simply demonstrates there can be a legitimate difference of opinion on what the law is.

The decision made by Mr. Justice Douglas Campbell is not the last word on this question. Nor can his decision have the effect of impeding or delaying a parliamentary resolution of this question. Ultimately, as Justice Campbell himself implied, the people of Canada, and not a judge of the Federal Court, will decide the future status of the Canadian Wheat Board.

Sidney Green is a Winnipeg lawyer and former NDP cabinet minister.

Republished from the Winnipeg Free Press print edition December 13, 2011 A12