FELDSTED -- For the most part, governments are too indolent to bother countering a court decision striking down law as unconstitutional

Judge made law ... I cringe whenever I hear the term. In one role or another I have been involved in contract law for over half my life. 

Our constitution is a contract between governments we created, and the people. Like any other contract, it is open to interpretation, which is exacerbated by its age – the language in use 150 years ago is not the language we are familiar with today. 

Many issues we face today did not exist when the BNA Act was written.

The term “judge made law” is popular but based on misinformation. The role of the courts is to interpret the laws of the land as best as they can.  Very often laws are unclear. That leads to variations in interpretation. 

When judges strike down a law as unconstitutional, in whole or in part (usually the latter) the result is not ‘judge made law’. 

The decision of a court is open to appeal and a decision can be overturned at a higher level. Governments have the option to appeal. More importantly, governments also have two other options:

1. They can amend the law to clarify intent and make the law compliant with the constitution; or
2. In some cases, they can invoke the ‘notwithstanding clause’ to counter a court decision.

For the most part, governments are too indolent to bother countering a court decision striking down law as unconstitutional. It is an abdication of responsibility for governments to throw up their hands and say: “The courts have decided”. 

That is rubbish. 

We elect politicians to govern and enact law on our behalf. We have courts to ensure the laws made are within the constitutional powers of legislators. When our courts decide that legislators have badly framed a law and strikes down, the ball is in the legislators’ court.

It is the duty and responsibility of legislators to remove the offending legislation from our body of law or replace it with acceptable legislation or to invoke the ‘notwithstanding clause’. 

Doing nothing is not an option but is what has happened in a growing number of cases.

I would not care to live in a nation that does not have an independent judicial overview of legislation. Without that, we are vulnerable to tyranny. Independent judicial review of law is essential in a democracy and the difference between democratic and autocratic governance.

That is why political interference in the administration of justice is abhorrent and unacceptable. It is also why the SNC-Lavalin affair must not be allowed to die without a full investigation. 

We must never allow legislators to interfere with the independence of our justice system. That independence is our protection against the serfdom of tyranny.

Apparently, keeping your nest clean is something we teach our grandchildren but is lost on politicians who lust for power.  

John Feldsted

Political Consultant & Strategist

Winnipeg, Manitoba