CALGARY: Conservative policy proposals seek to tilt power from courts to Parliament, documents show
Documents obtained by The Provincial Times during the Conservative Party of Canada's ongoing policy convention reveal several resolutions aimed at reshaping the relationship between Parliament and Canada's judiciary, seeking to tilt the balance of power toward elected officials.
The proposed policies—which will be debated and voted on by party members at today's convention—call for new parliamentary oversight of court decisions, formal reviews of judicial appointments, and a renewed emphasis on the Charter's notwithstanding clause.
Together, they form what could become a significant plank in the party's next election platform, with implications for Canada's constitutional framework.
A Parliamentary 'Judicial Review Committee'
The most direct proposal comes from a resolution titled “Judicial Accountability” (ID: 1087), sponsored by riding associations in Dufferin-Caledon and several other Ontario ridings. It begins with a straightforward declaration: “The Conservative Party believes that Parliament, rather than the courts, is the law-making body of Canada.”
To reinforce this principle, the resolution calls for the establishment of “a parliamentary judicial review committee to prepare an appropriate response to those court decisions that Parliament believes should be addressed through legislation.”
In plain terms, this committee would serve as a formal mechanism for Parliament to push back against court rulings it disagrees with, potentially leading to new laws that override or circumvent judicial interpretations.
The proposal's rationale argues that “federally appointed judges serve effectively for life and often legislate from the bench, with limited accountability.” It suggests that parliamentary reviews of judicial appointments and “exploring shortened but renewable fixed terms” could prevent “ideological entrenchment and promote renewal” while respecting judicial independence.
Reining in the 'Living Tree'
A complementary resolution (ID: 1321) takes aim at constitutional interpretation itself. It explicitly rejects the Living Tree Doctrine, the legal principle that Canada's Constitution is an organic document that should be interpreted in light of changing societal values.
Instead, the resolution states that “fundamental changes to the application of the Constitution should only be made via its Amending Formula,” the formal process requiring agreement of Parliament and provincial legislatures.
“The unelected judiciary should not be able to usurp the fundamental principles of our Parliamentary Democracy,” the resolution argues, adding that the Charter includes an amending formula “that was agreed to by the federal Parliament and the provincial Legislatures.”
This represents a direct challenge to decades of constitutional jurisprudence, which has seen courts interpret Charter rights to cover issues not explicitly mentioned by the drafters in 1982, including same-sex marriage and assisted dying.
The Notwithstanding Clause and Human Rights
Both judicial reform resolutions contain another significant common element: they explicitly “re-affirm the legitimacy of the entire Charter of Rights and Freedoms, including section 33,” the notwithstanding clause.
This clause allows Parliament or provincial legislatures to override Charter rights for five-year periods, a power that historically was used sparingly but in recent years has been used very liberally to force through controversial legislation, most notably by Quebec, Alberta, and Ontario in recent years.
One of the resolutions also proposes legislation to “remove authority from the Canadian Human Rights Commission and the Canadian Human Rights Tribunal to regulate, receive, investigate or adjudicate complaints related to section 13 of the Canadian Human Rights Act.”
Section 13 previously dealt with hate speech but was repealed in 2013. The inclusion of this provision in current resolutions suggests some party members want to prevent any future restoration of such powers to human rights bodies.
The Context and Implications
These judicial reform proposals arrive amid ongoing conservative critiques of what some call “judicial activism,” the idea that courts overstep their proper role by making what are essentially policy decisions.
The documents suggest party members are seeking formal mechanisms to reassert parliamentary sovereignty, a concept that holds that Parliament, as the elected body, should have the final say on most matters of public policy.
If adopted as official party policy, these proposals would likely feature prominently in future Conservative election campaigns, potentially setting up a significant debate about the proper balance between judicial review and parliamentary supremacy in Canadian democracy.
Today's policy convention will provide the first test of how enthusiastically the broader membership embraces these proposed reforms to Canada's judicial and constitutional landscape.
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