'Before 1982, restraint was hard-wired into the limited role that judges played. Now judges are hard-wired into enormous authority'
Judges in Canada have been “hard-wired” by four decades of the Charter of Rights and Freedoms to wield “enormous authority,” and they are making decisions that are “increasingly governmental in nature,” according to a sitting Supreme Court judge.Justice Malcolm Rowe argues that these governmental-type decisions include court rulings that regulate conduct, including in the operation of the economy; allocate public resources; and determine patterns of decision-making by institutions of the state.
“Great caution is warranted in such matters. The courts have no authority to amend the Constitution by adding new elements to it,” he said. In his lecture, Rowe said the notion of restraint is not about what gets decided, but how it gets decided, and by whom. “Before 1982, judges accepted that public policy was largely for parliamentarians and ministers, not for them. After 1982, judges had to adapt to their additional public policy role,” he said.
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