Decision-making in the Supreme Court of Canada.

• Author: Bastarache, Michel

In a presentation such as this one, there are a number of subjects that could be covered. After some hesitation, I have concluded that the preferable approach is to speak to you about the changing role of our court, its decision-making process, and the impact of globalization on its work.

The Nature of Decision-Making: The Changing Role of the Court

The most glaring characteristic of society today, I believe, is the rapidity at which it is changing. Social cohesiveness, the role of governments, the expansion of regulation in all fields, and the creation of multiple boards have all led to a deep transformation of judicial review. The nature of judicial review, its application to discretionary and ministerial decisions, its scope and frequency, and its consideration of substantive content, are all relatively new developments. Public expectations with regard to judicial review have also changed. More and more, people turn to the courts to challenge governmental decisions rather than appear before legislative committees. The impact of judicial review on the credibility of governments can be enormous; the impact of judicial review on the freedom of government to act in an efficient way can also be enormous. In a number of cases, courts have severely criticized governments, affecting their credibility. Governments and legislators in general expect the courts to be accountable for their judicial decisions. In some cases, they have responded to unfavourable decisions by attacking the courts for what has come to be known as judicial activism.

In a society increasingly defined as espousing a culture of rights, constitutional law has obtained a new meaning. In the age of the Charter, constitutional review has become a constant reminder that the relationship between the courts and legislatures has changed a great deal. (1) There is now constitutional review of legislation and the exercise of executive powers. The fact that many rights are undefined, results in the necessity for the courts to exercise great discretion, which is sometimes seen as arbitrariness. It is largely because of this that the appointment process regarding judges of the Supreme Court of Canada has been questioned.

Why are things so different now? It is largely because everyone has an opinion concerning fundamental rights, even though they may have no legal training. What brings justice into disrepute? What is an unreasonable delay? What is an unreasonable search? Is a fetus a person? Is a homosexual partner a spouse? Everyone has an opinion concerning these questions and the reasonableness of the court's decision.

Public scrutiny of decisions reported and commented on by the press creates a new challenge for the courts in preserving the dignity and respect that their role requires. Criticism of judicial decisions is often based on a bad understanding of the law or inadequate reporting. Judicial review is not the same as an appeal; parole is not awarded by judges. These distinctions are not always understood by the general public. Sometimes, criticism is simply based on a misunderstanding of the facts: two examples come to mind--Liberty Net and Pushpanathan. (2) Criticism and editorial comment are very often personal, even in the case of appeal courts. Often, criticism is just an attack on outcomes disguised as an attack on judicial activism. For instance, consider Thompson Newspapers and the publication of polls during an election. (3)

Is there judicial accountability? Yes, and it takes the form of reasons for judgments and demonstrating that the protection against arbitrariness is in the process of decision-making and the reality of judicial precedent. Still, it is clear that courts are called to define the moral and ethical...