Angry in the Great White North

From the front page of the National Post:

Judges should feel "emboldened" to trump the written word of the Constitution when protecting fundamental, unwritten principles and rights, Canada's Chief Justice says.

Beverley McLachlin, in a speech delivered in New Zealand, took on critics who say judges have no business going beyond the strict letter of the Constitution to strike down laws and enforce rights.

"The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion," said a prepared text of the lecture Judge McLachlin gave to law students at Victoria University of Wellington late last week.

Of course, these norms are known only to the justices on the Supreme Court. No democratic evaluation of their thinking and performance to get in the way.

"There is certainly no guarantee or presumption that a given list of constitutional principles is complete, even assuming the good faith intention of the drafters to provide such a catalogue."

Of course there is no guarantee. No one is asking for one. The idea is that the list is a minimal working set of principles and rights need to keep the country working. We have an amendment formula in place to add to the document is the majority of the people, not just a majority of Supreme Court justices, thinks a new principle is important enough to be included.

If you don't like the amendment formula, arrange for a seance take it up with Pierre Trudeau. He was the guy who cobbled together our constitution and the Charter of Rights that have been nothing but a nightmare since he foisted them on us.

There is a reason we have a short list or principlea and rights, and not a long list. It is called the problem of "over-specification". It happens a lot in engineering. In an attempt to make sure your system is perfect, you specify everything. No grey areas. You go well beyond what is required to make sure the system works.

What happens is that you eliminate the opportunity for the people implementing the system to your specifications to use their best judgment given the circumstances at the time to fill those grey areas. That's an important degree of freedom to ensure that the system is robust and flexible.

But people like McLachlan want to fill in all the blanks, instead of leaving it to the legislature to do its job, slowly over time, with an eye to constantly shifting realities.

Now for the scary bit:

"I believe that judges have the duty to insist that legislative and executive branches of government conform to certain established and fundamental norms, even in times of trouble," she said.

A duty to force the government to bend to the will of a simple majority of a group of nine men and women appointed without review by a Prime Minister.

This is why we need a Parliamentary review of and vote on all judicial appointments that are now made unilaterally by either the Minister of Justice or the Prime Minister.

First question to a potential candidate: Are you a megalomaniacal control freak with delusions of grandeur masquerading as concern for the rights of people you believe are below you and requiring your divine guidance?