Wednesday, January 24, 2024

History of Politicians and Judges: the Emergencies Act ruling

I've long been under the impression that the Supreme Court of Canada, while bold in constitutional interpretation ever since patriation in the 1980s, has generally been cautious about substituting "what it would have done" in place of the policy decisions made by elected politicians holding governing responsibilities -- even if those boundary lines are sometimes hard to define.

This quick analysis by political scientist Emmett Macfarlane  -- entitled "A Dubious Judgment on the Emergencies Act" -- argues that Justice Richard Mosley of the Federal Court has been a good deal less restrained in his judgment on the Emergencies Act case.

Because the decision primarily concerned the decision to invoke the EA (rather than the constitutionality of any provisions of the EA itself), the Court’s job was to assess the reasonableness of the decision “with deference owed to the decision maker and its specialized expertise” (para. 202). The judge, however, ends up not so much reviewing the reasonableness of the decision in light of the circumstances facing the government so much as undertaking a total reappraisal, with the judge substituting his judgment for that of the government’s, with little to no deference to be found.  [italics added]

It's well worth reading. Not my field of expertise, but it sounds like the Supreme Court may find grounds to weigh in on this case. (Though there is a Federal Court of Appeal between Mosley and the Supreme Court.)

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