Supreme Court justice urges caution on expanded judicial authority at UBC Okanagan

The Supreme Court of Canada should 鈥渟tay in its lane鈥� when it comes to expanding its judicial authority within Canada鈥檚 constitutional system, says Justice Malcolm Rowe.

Rowe, one of nine justices on the Supreme Court, said bringing home Canada鈥檚 constitution in 1982 and the adoption of the Charter of Rights has raised questions about the separation of powers between Parliament, the executive branch of government and the Supreme Court.

In comparison to the U.S. Supreme Court, which has taken a more political stance on issues such as abortion and voting rights, Rowe says he advocates a more carefully thought out move in such a direction.

鈥淪ome people call me a conservative on the bench, but I feel that is wrong. I am cautious,鈥� said Rowe.

The justice presented his thoughts in a constitutional lecture he gave Thursday, Sept. 21, at UBC Okanagan.

Rowe offered a history of the evolution of judicial authority in Canada鈥檚 history, and his assessment of the separation of powers between the branches of government.

鈥淭his is one of the most fundamental questions in constitutional law,鈥� said Geoffrey Sigalet, an assistant professor of political science with UBCO鈥檚 Irving K. Barber Faculty of Arts and Social Sciences.

鈥淎t a time of heightened political polarization regarding questions of rights and the state鈥檚 reach into citizens鈥� lives, the question of separation of powers is not merely academic.

鈥淚t is about which institutions should be settling which kinds of questions as they impact the lives of Canadians.鈥�

In his presentation, Rowe outlined several reference points that reflect the need for caution in expanding judicial authority.

Rowe said the court lacks the institutional capacity to weigh the pros and cons of any government policy decision-making or to invite public debate on a given issue that Parliament and an elected government have.

鈥淚 am a little uncomfortable being in a position of making decisions without the capacity to fully flush out the implications of those decisions,鈥� Rowe said.

He said the legitimacy of the court can also be called into question because, unlike a government, the ultimate authority in the decision-making process is the power of the vote.

He said if you don鈥檛 support a government-imposed policy, you can express your dissatisfaction at the ballot box, while supreme court judges have a lifetime tenure to ensure legitimacy on the application of law judges decide is not influenced by political partisanship.

鈥淭enure ensures the Supreme Court has the independence and ability to make legal decisions,鈥� Rowe said.

鈥淭here are consequences to expanding the role of the Supreme Court and they must be addressed in a thoughtful manner with sound methodology behind it.鈥�

He acknowledged the court should not be out of sync with the goals and aspirations of society in Canada, but should lag behind patterns of change to ensure those goals and aspirations are based on sound legal methodology.

Rowe said while many Canadians may look to the Supreme Court to address their frustrations with liberal democracy, he believes governance as it exists today remains effective and accountable.

鈥淭he ballot box still remains the best way to bring change,鈥� he said, noting while democracy may be under fire these days as an ineffectual form of government, 鈥渋t鈥檚 still the best form of government there is.鈥�

鈥淒emocracy is not a sham鈥� but I feel it is important that the courts stay in their own lane.鈥�

Rowe brings some unique perspective to those thoughts having worked for the government in Newfoundland and Labrador, including as the head of Newfoundland鈥檚 public service, coupled with his career as a lawyer and judge.

In his presentation, Rowe made no reference to issues currently facing the U.S. Supreme Court but was asked in a Q&A session after his presentation about current code of ethics issues facing some of his U.S. counterparts.

鈥淩egarding the code of ethics, we are way ahead of the Americans on this. We actually have a code of ethics in place,鈥� Rowe said.

鈥淓thics issue guidelines are one of the first things you are presented with when becoming a (Supreme Court) judge. I have read them.

鈥淲e are way ahead of the Americans on this one.鈥�

琉璃神社