Michael A. Loberg
Barrister & Solicitor
Loberg Law
In addition to practicing law in Canada I am also (among other things) a Solicitor of the Senior Courts of England and Wales (presently inactive). With that I am subscribed to the publications of the Law Society of England and Wales. Today they published a piece on the importance of judicial review as a check on the power of the government and its agencies and bodies, which process is under review in that jurisdiction.
Needless to say, I agree that this is a critical tool in ensuring that the government and its bodies use their powers in accordance with the law, and only that way.
This from the article:
"...‘Do not undermine a key route to challenging decisions by public bodies’ was the message from solicitors’ leaders to ministers and to the Independent Review of Administrative Law which will look at a vital component of the ability to check power – judicial review.
“Judicial review exists to determine whether public authorities are acting lawfully, whatever government is in power. It is a pillar of democracy that ensures the laws made by parliament remain supreme, that the state can be held to account and that people can assert their rights,” said Law Society of England and Wales president Simon Davis..."
Judicial review is presently available in Canada, but there is another challenge here: the question of whether the government will fully and fairly participate in judicial reviews of its action.
At present in the case of CCFR v Canada the government has taken the remarkable step of claiming cabinet privilege over the entirety of the materials behind a decision made by Order in Council to ban certain firearms, thereby wholly depriving the Court of the ability to conduct a meaningful judicial review of that decision. The CCFR is applying to the Court to change that result, and because it is now before the Court I will not comment further on that case.
I will say though that in general terms the ability of the Court to act as a check on the use, and potential abuse, of power by a government is critical, especially under a system of government like Canada's, where Orders in Council are assembled in secret and are not known until they are announced. There is no debate in Parliament about them, the Senate does not see them, and no committees of government are consulted in preparing them. The Prime Minister and cabinet simply bypass Parliament and declare what the law is, and that's the end of it. That is a remarkable event in any democracy or democratic republic, especially when it is a matter of substantive law that affects hundreds of thousands of people. That requires checks and balances, and those are in short supply in Canada.
Without an effective judicial review process, there is literally no check on the use of Order in Council powers, absent it going so wrong as to violate the Constitution such that it is struck down in (say) a criminal prosecution. That's not good enough. Removing judicial review as a check on government, or allowing its processes to be undermined, leads to a very dangerous state of affairs.
https://www.lawsociety.org.uk/contact-or-visit-us/press-office/press-releases/do-not-knock-down-a-pillar-of-our-democracy-warns-law-society?utm_source=professional_update&utm_medium=email&utm_campaign=PU-10%2F09%2F2020&sc_camp=5C0FE0D28B474F6BA2EE374CB3EE601B
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Topic: Lawyers hit cabinet secrecy wall in gun ban challenge court case (Read 3450 times)