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One of the founding principles of democracy is “‘No taxation without representation.” It animated the Boston Tea Party and the American Revolution. Its principles can be traced all the way back to the Magna Carta in 13th-century England. It is a rallying cry against the arbitrary abuse of power, whether committed by the executive branch or the courts.

Photo by Chris Young/The Canadian Press

This fundamental principle of “no taxation without representation” has been under growing threat in Canada since the Charter of Rights and Freedoms was adopted in the Constitution in 1982. Before then, the courts accepted that laws enhanced freedom by enforcing boundaries against wrongful conduct and the arbitrary exercise of state power. Since the Charter was adopted, there has been a growing trend to judicial activism where the courts decide on policies that affect how taxpayer dollars are spent. This encroaches on what should be the exclusive domain of legislatures, which alone have the legitimacy to tax and spend. This is because only politicians are accountable to the people and understand that society cannot undertake everything that is desirable, implying that trade-offs and choices must be made that the courts are not equipped or trained to make.

There are many examples of the courts going well beyond the interpretation of constitutional law with implications for how money is spent. Funding health care for rejected refugee claimants drains precious resources from our most expensive public service. Granting public sector unions the right to bargain and strike ignored that there are no innate checks on public-sector union demands (unlike in the private sector, where workers know that their output can always be replaced by competing products or services). Judicial activism is why the Macdonald-Laurier Institute saw fit to crown the Supreme Court the “Policymaker of the Year” in 2014.