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In other words, the court ruled that the constitution, instead of having the final say, must be “balanced” against a lesser administrative body’s mandate.

Admittedly, it may be difficult to find a strict constitutionalist in a country that lacks a strict constitution, but were Canadians more engaged in — or at least aware of — the process by which the Supreme Court is formed, judicial appointments would come with much more accountability.

Photo by Justin Tang/The Canadian Press file photo

From religious freedom to mandatory minimum sentences to something as seemingly trivial as driving beer across provincial boundaries, in all of these areas the Supreme Court has ruled against what most would describe as the conservative position. Even after 10 years of a Conservative government that appointed six of the nine current Supreme Court justices. Even Richard Wagner, the new Chief Justice, was appointed by Stephen Harper.

While Canadian Conservatives sound the alarm about Supreme Court rulings, they should actually be looking to the lawmakers who had a hand in shaping the court that made them. Like the Senate, the Supreme Court’s makeup and influence outlast the government of the day: justices in Canada are appointed until they turn 75. Not the lifetime appointment that exists on the bench in the United States, but still a term that can span decades.

While I’m sympathetic to the argument that America’s approach to the Supreme Court is far too polarized, I will take that over Canada’s ambivalence to it. The polarization is a byproduct of a country that is invested in its court in a way that Canada must be.

We wouldn’t stand for laws being passed by faceless agents in a back room, so we certainly shouldn’t be content with faceless judges interpreting them.

andrew@andrewlawton.ca

Twitter.com/andrewlawton

Andrew Lawton is a fellow at the True North Initiative.