Judicial Independence Is Crucial to the Rule of Law

The justice statue at the Supreme Court of Canada on Parliament Hill in Ottawa on June 17, 2021. The Canadian Press/Justin Tang

Commentary

From our economic history textbooks, we learn that the independence and fairness of the British courts made it attractive for investors to place their money into British ventures during the Industrial Revolution.

Foreigners investing in British ventures felt sufficiently confident to bring a cause before a British court and receive an impartial and fair hearing. British courts would not favour British subjects simply due to their nationality. In essence, independent courts carried out the application of British law that rested on impartial principle, not on tribal, national preference, or the pleasure of the government of the day.

Judicial independence is firmly established in the Canadian Constitution Act of 1867. This independence seemed compromised during the rash of instances of COVID-19 government policy overreach. Courts were timid, deferent, and at times seemed subservient to government policy at the expense of fundamental rights. But in the last few months, the federal government suffered three significant legal setbacks in court. While these cases did not directly address the autonomy of the courts from government, their decisions displayed independent attitudes from Ottawa’s overreaching one.

Last October, the Supreme Court delivered a powerful blow to the Impact Assessment Act, which sought to exercise control over large infrastructure projects under the guise of environmental protections. The court ruled that, while the federal government is entitled to make laws about environmental issues, it cannot overtake provincial jurisdictions outlined in the constitution. Ottawa plans to bring another version of the act forth as new legislation.

Then in November came a similar decision regarding the federal government’s desire to control the use of plastics by categorizing them as toxic. The Federal Court ruled that the definition according to the Environmental Protection Act is too broad to be reasonable. Once again, the federal government had overshot its mark in an attempt to expand its powers at the expense of citizens and provincial jurisdiction. Environment Minister Stephen Guilbeault announced an appeal will come.

And on Jan. 23, Ottawa received the hardest blow of all. Civil rights advocacy groups had challenged the federal government’s false narrative about their invocation of the Emergencies Act, formerly known as the War Measures Act. The Federal Court ruled that the government’s use of such a blunt tool was unreasonable. Because the act requires a measure of reasonableness for its invocation, the draconian federal reactions are unconstitutional. Take the instance of freezing bank accounts. It transgressed the constitutional seizure restrictions.

Unwilling to accept that they overreacted to the truckers’ legitimate, albeit unconventional, protest, the federal government quickly declared it will appeal. Governments have the right to appeal, like any other entity, but it’s the intransigent attitude of repeatedly refusing to lose, going to extreme lengths to win, that is the issue. Such an immature attitude led the federal cabinet to invoke the Emergencies Act in the first place.

This attitudinal pattern should concern Canadians, and foreigners who engage with Canada. As Peter Menzies pointed out in these pages, the chief justice of the federally appointed Supreme Court of Canada has already made inappropriate remarks about the truckers’ protest that could lead any reasonable observer to question the impartiality with which the court might handle Emergencies Act cases.

When the perception takes root that our courts may be reluctant to entertain viewpoints beyond the official narratives, akin to the patterns seen in the mainstream national media, it gives rise to apprehension. When Stephen Guilbeault hints that a legitimate Supreme Court decision is just an opinion, it challenges the rule of law. When Justin Trudeau endorses the idea that he brooks no dissenting protests against his government’s policies, it stifles political pluralism.

And when the prevailing perception suggests that Ottawa stands invincible, even when it entails trampling the constitutional rights of individuals and provincial governments, it casts a shadow of doubt on any foreign expectation that the courts might render a fairer judgment in the event of a conflict with the federal government.

Even when an appeal awaits, it remains to be seen how finding Ottawa’s invocation of war-like measures unjustifiable may affect the Coutts Four and the Lich and Barber trials.

A return to the reality and perception of judicial independence after their COVID regime hiatus is welcome. The courts must press and continue to assert their independence from the ruling party if the rule of law is to be maintained, for citizens and for foreigners.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.