Policy Brief published today defends judicial review in representative democracies

Court of Appeal Judge warns of danger of courts acting as representative bodies
21 December 2012

A senior Court of Appeal Judge from the Court of Appeal for Ontario has defended the right of the courts to overturn laws such as those curtailing the rights of prisoners to vote, arguing in a policy brief published by the Foundation for Law, Justice and Society today that judges undertake an important role in a constitutional democracy by exercising their power of judicial review. 

In the policy brief, entitled Are Courts Representative Bodies? A Canadian Perspective, Judge Robert Sharpe assesses the role of judges in representative democracies, and defends the independence and impartiality of judges against claims that judicial review enacted by powerful unelected bodies is inherently undemocratic.  
 
The policy brief sounds a warning that, if the courts were to seek legitimacy as representative bodies, this would be a dangerous distortion of the judicial function. Judge Sharpe argues that it is precisely because courts are isolated from the push and pull of politics and popular opinion that they are able to set limits on majority rule in order to protect minority rights and uphold democratic principles. 
 
Citing the recent prominent example of prisoner voting rights, which has recently seen the UK government clash with the European Court of Human Rights, Judge Sharpe argues, “The most obvious pre-condition to democracy is the right to vote, a right that, as the Supreme Court of Canada stated when striking down a law that curtailed the right of penitentiary inmates to vote, ‘underpins the legitimacy of Canadian democracy and Parliament's claim to power’ and that should be robustly defended by the courts, ‘unaffected by the shifting winds of public opinion and electoral interests’”.
 
the right of penitentiary inmates to vote, ‘underpins the legitimacy of Canadian democracy and Parliament's claim to power’ and that should be robustly defended by the courts
 
The policy brief is supportive of recent moves to improve diversity in the judiciary through reform of the judicial appointment process, since the wider pool of judicial experience will improve decision-making and enhance public respect and confidence. 
 
Judge Robert Sharpe has been a judge of the Court of Appeal for Ontario since 1999, during which time the power of judicial review and the threat of declarations of constitutional invalidity have shaped decisions on many contested human rights issues including abortion, euthanasia, gay rights, and prisoner voting rights.
 
The policy brief develops the thoughts Judge Sharpe presented at a panel debate earlier this year at which four leading judges gave their own personal perspectives on the degree to which judges can and ought to act as representatives of the polities they serve. An audio recording of Judge Sharpe’s comments can be downloaded from our Podcast pages or from the link on the right.
 
Download:
 
Judge Robert J. Sharpe, Court of Appeal for Ontario, Canada