That’s the only conclusion I can draw from the Story in the today’s Globe about the 25th anniversary of the Charter, which found (among other things) that 2/3 of Canadians support the idea of elected judges.
The thing about judges is that most of the time if you don’t like what they’re doing, you can tell them to do something else in the future. That’s what legislatures are for. Charter jurisprudence is another story, but it would entirely defeat the purpose of having a Charter as a check on majoritarianism if Charter jurisprudence was determined by which judges got elected last time around. Not to mention that any hope of developing a coherent jurisprudence (difficult enough as it is already in the Charter context) would be simply out the window.
It’s just such a clueless idea that it makes me wonder whether people actually have any idea what this Charter thing is that they tell pollsters they approve of at a 53% rating (25% neutral, 12% negative). Or what standard people are using when 42% of them say that the SCC has done a good job, 37% an average job, and 15% a poor job of protecting Canadians’ rights and freedoms.
Apparently 73% of Canadians support the addition of property rights in the Constitution. Does anyone have a clear idea of what this would actually do? (I don’t, offhand. But the provinces were–left and right–all of them dead set against it in 1982.) As things stand there is already a degree of protection for property rights at common law–you can’t expropriate without compensation unless you make it very clear by statute that that’s what you’re intending to do. And legislatures are usually loathe to stand up and say “we’re taking your property and giving you nothing in return” in so many words.
Last tidbit. An accompanying article goes on about how the courts are unwilling to strike down laws when it means reallocating public money. This is true, sort of. The courts have sent clear signals that they are unwilling to use the Charter to micromanage federal and provincial social benefits programs. The general idea seems to be “we know you have to make distinctions, and we’re not going to second-guess you if you seem to be making them in reasonable ways.” But the courts are in the end willing to intervene if a group is excluded from a benefit program on what appear to be essentially arbitrary grounds–as they did when Nova Scotia’s worker’s compensation program decided to largely exclude people suffering from chronic pain from its normal benefits scheme. In my view, the Court’s reluctance here has more to do with institutional competence than money per se.
Not to mention that virtually every Charter ruling against the Crown creates some kind of costs for government, not least in the criminal context (making the Crown work harder to convict someone usually means making it more expensive too).
The Globe story continues tomorrow and Wednesday.