Bronwyn Eyre: Judges Should Interpret Law—Not Make Public Policy From the Bench

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According to Ecojustice lawyer Fraser Thomson, who represented the activists, the ruling “effectively boxes Ontario in and subjects its climate record to full Charter scrutiny.” The Supreme Court recently denied Ontario’s appeal request in the case, which is now heading back to court. This, as similar youth-led climate cases are making their way through the courts in other provinces.

Courts ought not be the exclusive arbiters of social and economic policy—genuine concerns about issues such as climate policy or homelessness notwithstanding.

So, what to do?

For now, premiers are increasingly looking to the Notwithstanding Clause. Routinely called the “nuclear option,” it’s actually a perfectly legitimate use of Section 33 of the Charter—and the most powerful tool governments have to assert parliamentary sovereignty.

A constitutional scholar and former NDP premier of Saskatchewan, Allan Blakeney, would agree. Blakeney fought hard for the clause’s inclusion in the Charter and wrote, in 2010, that the state could invoke it for “economic or social reasons, or because other rights are more important.”

Let’s not forget that from 1982 to 1985, Quebec “notwithstood” everything—and that doesn’t mean one must agree with its every usage. The point, a la Blakeney, is that it is the only mechanism to reassert some parliamentary supremacy. More recently, Quebec and Alberta have talked about forming an “autonomy alliance,” which would create a “special deliberation mechanism for legislative bills and include the Notwithstanding Clause to dissuade court challenges.”

If only such a mechanism could reform federal catch-and-release laws.

In 2023, Justice Harrison Arrell released violent offender Randall McKenzie, citing Criminal Code-embedded bail rules that mandate “vulnerable population” considerations. “It’s a very iffy case,” Arrell wrote. “I appreciate all the violence in his record, but part of that is his native background, education and employment opportunities.”

Six months later, McKenzie killed OPP Constable Greg Pierzchala. The shocking case highlighted 2018 federal Criminal Code amendments, which codified the “principle of restraint”—that bail must be granted at the “earliest possible opportunity” on the “least onerous conditions.”

Despite limited subsequent tweaks to the Criminal Code by the federal government, nothing fundamentally has changed.

When asked whether Canada is “soft on crime,” Sean Fraser, Canada’s new minister of justice and attorney general, said we “can’t operate in the space of slogans and soundbites.”

Indeed.