Introduction
The Canadian Supreme Court is the highest court in the land and rules on public and legal matters (Emmett 1). The court’s rulings have improved the law division in the country and often clarify disputes regarding certain clauses in the constitution. According to Laidler (210), the court has played an integral part in promoting democracy and ensuring that legal decisions follow the guidelines of the constitution. The author also notes that the court is also involved in modeling the social and political structures in the country (211). The introduction of the Charter of Rights and Freedom in 1982 formed a foundation through which the court makes final verdicts relating to the law of the land.
Miljan (710-711) acknowledges that the Canadian Supreme Court lacked the ability to strike down or approve laws before the implementation of the charter. During this period, decisions were based on the Canadian Bill of Rights, which limited the number of civil liberty cases that were heard by the court. However, the adoption of the charter has elicited a lot of criticism on the judgments made by the court. In reference to Sharpe (3-4), the court is labeled as a “judicial activist” due to the political nature of the rulings that it makes. Despite such criticism, the charter has played a significant role in public policy issues. The aim of the current research is to determine the role of the Canadian Supreme Court in politics. The research also determines whether the court has too much power.
The role and power of the Canadian Supreme Court
In reference to Wetstein, Ostberg, and Songer (763), the Canadian Supreme Court makes decisions based purely on attitudinal grounds. The court’s political principles seem to occupy the center stage in the attitudinal based judgements. Ostberg and Wetstein (678) agree with this view and state that factual scenarios in specific cases tend to trigger the attitudinal verdicts given by the judges. This is usually evident when the judges rule on cases that attract a lot of interest from the media. In a research conducted by Wetstein, Ostberg, and Songer (764), the authors revealed that the Canadian Supreme Court exhibited high levels of ideological voting when making its decisions. In support of the court’s conduct, Bjornson (4-6) notes that the Supreme Court operations have been part of the country’s legal and political life.
Therefore, its functions cannot be free from politics. According to Ostberg and Wetstein (680-681), the Canadian Supreme Court judges are famous for giving unanimous rulings. The lack of opposing views subjects their judgments to high levels of scrutiny from the legislative branches and civil rights groups. Ostberg and Wetstein (682) also acknowledge that the Supreme Court has acted as a ‘subordinate’ in the Canadian political system, with majority of its rulings geared toward settling disagreements between the provincial and national administrations. Wetstein, Ostberg, and Songer (770-771) also report that the charter and the judicial review components of the Supreme Court have made majority of its verdicts appear to support the civil rights and liberties movements. Unlike the Supreme Court of the United States, the Canadian counterpart’s judgements are more likely to differ from those of parliament (Ostberg and Wetstein 690).
Perhaps this is because the court prefers to support issues that elicit massive political debates.
In a research undertaken by Baird and Gangl (600-603), the findings stated that majority of the judgments made by the Canadian Supreme Court were politically biased, and aimed at promoting public confidence. Ostberg and Wetstein (678) also note that the political nature of the court tends to promote the level of attention from the public and the media. Additionally, the court seems to take advantage of the media coverage to pass politically controversial judgements. Miljan (713) reports that incidences of ruling on politically controversial cases by the Supreme Court have been increasing in the last decade.
Baird and Gangl (604) indicate that the Canadian media tends to report the judgments of the court in political perspectives. This could explain why the Supreme Court rulings on issues regarding abortion and homosexuality elicited a lot of debate from the political spectrum. Bjornson (4-5) also argues that the court tends to alter the Canadian law to suit its philosophies and political ideologies.
However, Wetstein, Ostberg, and Songer (769) support the actions of the Supreme Court by stating that the position of the court in the political system subjects it to political interference. Emmett (16-17) notes that the court’s decisions are usually final and irreversible as stipulated in the charter. As a result, majority of the verdicts are prone to uproar from the public and the legislators. In the view of this, Sharpe (4) calls for ‘judicial restraint’ with regard to placing the interest of the public before the guidelines of the constitution. In addition, Emmett (17-19) blames the judicial review process for making the court unaccountable for its actions despite their implications. Based on these reviews, the Supreme Court has too much power and has in the past failed to act within its jurisdiction.
The charter has played a significant role in promoting the level of influence and power of the Supreme Court. As aforementioned, the Charter of Rights and Freedom was adopted to boost the process of making public policies. Emmett (11-15) argues that its adoption has led to structural and political transformation of the Canadian Supreme Court. Notably, the Supreme Court Amendment act afforded the institution the power to determine the cases that were worth hearing. Ostberg and Wetstein (682-683) point out that the “notwithstanding” clause in the charter affords the legislators the power to overrule the decisions of the Supreme Court. This clause was developed to allow the executive to override pledges within section two and sections seven to fifteen of the charter. Many scholars have argued on the rationale behind the “notwithstanding” clause with some stating that it offers the political players the power to overrule flawed decisions (Wetstein, Ostberg and Songer 769).
However, Ostberg and Wetstein (690-691) state that there has been an infrequent use of the clause, with the executive making very few attempts to alter the decisions of the Supreme Court. Moreover, the court has on several occasions overruled on the use of the ‘notwithstanding’ clause. Emmett (25-27) reports that the court’s decisions have in the past been rendered final despite complaints from the legislators and the public. In this regard, the court has occasionally appeared to be above the law and the judge’s decisions have been under the influence of political disposition. A research study by Wetstein, Ostberg, and Songer (764-766) compared the power of the United States Supreme Court to that of the Canadian counterpart. Contrary to the expected findings, these authors reported that the Canadian judges were less likely to abuse the power bestowed upon them by the charter.
The authors argued that the conduct of the previous courts should not be generalized because the sitting chief justice determines the level of power that a certain Supreme Court has. Thus, there have been discrepancies in establishing the level of political influence in the Canadian Supreme Court.
Songer and Szmer (390-391) refer to the Canadian court as ‘extreme’ with regard to the level of political influence and the making of unanimous judgements. The authors indicate that the Supreme Court is almost similar to the American model where unanimity in the ruling seems to be a prerequisite for gaining public confidence (391). The Supreme Court judges appear to be at liberty to sign on the decisions of their associates or create their own. However, these authors note that the proportion of verdicts that have lacked unanimity in Canada is about 25 percent. This is half the rate of dissent portrayed by courts in America and Australia.
Ostberg and Wetstein (682-683) report that the high level of unanimity in the Supreme Court is aimed at promoting the legitimacy of the court. Additionally Songer and Johnson (921) reveal that the unanimity in the decisions of the Canadian Supreme Court seems to focus more on issues that elicit political tension. The authors also note that such unanimity seems to disregard the backgrounds of the judges in terms of whether they support the liberal or conservative parties. Moreover, Ostberg and Wetstein (692-693) indicate that such unanimity is due to the powerful nature of the Supreme Court and the ability of the judges to amplify the democratic values at their own discretion.
Songer and Szmer (391-392) give an example of the ‘Insite’ program judgement in 2012 where the Supreme Court overruled the government decision to close the program. The judgement was based on a publicized unanimous decision that seemed to accuse the government of disregarding the law, and failing to protect the marginalized populations. In this case, the judge’s ideological stances did not seem to apply, hence promoting unanimity. Wetstein, Ostberg, and Songer (769) acknowledge that the judge’s decisions should have some form of opposition from the colleagues. The fact that the Canadian Supreme Court lacks such opposition is an indication of the power that the judges exhibit over other institutions.
In reference to Wetstein, Ostberg, and Songer (764), the global judicial system is becoming more politicized. In this view, it is only possible to assess the conduct of judges by looking at the controversies that have surrounded their cases in the past. Ostberg and Wetstein (680) also acknowledge that some judgements made by the Canadian Supreme Court in the past breached the constitutional guidelines. According to Rangaviz (254-255), the Omar Khadr’s case is a demonstration of the powerful nature of the Supreme Court. The Supreme Court overruled a unanimous decision by the Court of appeal on the transfer of Khadr from the United States.
According to Roach (152-153), the Supreme Court demonstrated excessive control in its ruling. It seemed to ignore the most crucial elements of the case such as Khadr being a youngster during his arrest. Rangaviz (256) indicates that the case was a demonstration of the Supreme Court’s lack of respect for other institutions. The executive was angered by this decision and insisted that the court’s actions were a violation of the constitution. Karsoho (1-2) indicates that the ruling on the support of Physician Assisted Dying (PAD) on constitutional basis was a political stance. The ruling came after parliament rejected its legalization by a vote of 228 to 59 members. In 1994, the same court had ruled against a similar case on PAD. Karsoho (2) indicates that the publicized judgement on PAD did not seem to explain the reasons for the reversal of the previous judgement. These verdicts seem to support Ostberg and Wetstein’s (695) opinion that the Supreme Court has failed to promote the legitimacy of its decisions.
The Supreme Court acts in accordance with the law
In a research undertaken by Ostberg and Wetstein (678-679), the authors sought to establish whether decisions of the Canadian Supreme Court were based on political ideologies and attitudinal views. These authors compared the ideologies of the judges before and after appointment to the Supreme Court. Based on the results of the study, there was no correlation between the decisions made by the individual judges and their political ideologies. These findings were contrary to another study by Wetstein, Ostberg, and Songer (767) that indicated that the Supreme Court decisions were based on attitudinal perspectives.
However, this study was flawed, as it did not look at the ideologies of the judges before being appointed to court. Contrary to the aforementioned argument that the charter has promoted the violation of the constitution, Laidler (211-212) reports that it has actually transformed the legal system. Specifically, the charter has subjected the Supreme Court’s rulings to review by other political actors through the ‘notwithstanding’ clause. Therefore, there has been a balance between the opinions of the court and those of the legislators. Miljan (712-713) indicates that the Canadian Supreme Court has played an excellent role in the promotion of social reforms in the country. Additionally, Ostberg and Wetstein (680) argue that the Supreme Court has made remarkable efforts in clarifying issues that have elicited high level of reluctance among the legislators and the federal arms. This clearly illustrates that the court has acted within its jurisdiction.
According to Laidler (212-214), the Canadian Supreme Court cannot separate itself from political matters. The judicial review obligation of the court justifies its functions in the legal and political arena. Kelly and Murphy (219-220) also argue that the court should be commended for being a political power broker in Canada. In this view, critics should not underestimate the impacts of its judgements. These authors refer to the operations of the court as ‘meta-political’ due to their capacity to complement the role of other political organs (219). In reference to Sharpe (4), the Supreme Court also ensures that political players protect and balance the national interests of Canada with the autonomy of the constitution. Such balancing promotes peace and unity and enhances the relations between the federal governments and the people.
The court is well within its jurisdiction in respect to enunciating the comprehensive constitutional principles that govern the delivery of rights and freedoms to the people of Canada. Kelly (5) acknowledges that the Supreme Court of Canada operates independently without interference from the political arms, and does not usurp the functions of the legislators. Bjornson (3) also notes that the court is impartial and exerts neutrality in political matters. In conclusion, Songer and Johnson (911) state that international judicial roles are under transformation and the incorporation of political matters in the judiciary is becoming acceptable. In this regard, the Canadian Court acts within the international jurisdiction.
Conclusion
The Supreme Court is the final court of appeal in the land and serves the citizens on matters of public and legal concern (Supreme Court of Canada). Despite the clear roles of the Supreme Court as outlined in the constitution and the charter, it has been accused of exercising too much power in its rulings. According to Wetstein, Ostberg and Songer (763), the court makes its decisions based on attitudinal grounds. The attitudinal views are dependent on the political ideologies of the judges. Baird and Gangl (597) argue that the rulings of the court are political, and aimed at altering the level of public confidence.
The authors also indicate that the court tends to use the media to voice its political stances on various issues. In addition, previous judgement and overruling of decisions made by the court of appeal and other political actors portray the amount of power exhibited by the court. However, a research by Ostberg and Wetstein (678) showed lack of correlation between the rulings made by the court and political ideologies of the judges. Additionally, Laidler (210) argues that the charter promotes balance between the opinion of the court and that of political actors. Although the Supreme Court has exercised too much power in ruling over some cases, there is evidence to suggest that most of its decisions have been well within its jurisdiction.
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