Well, the Supreme Court has done it again in R v. Nur, interpreting its Constitutional mandate sufficiently broadly to intrude at least some way into the realm of policy rather than jurisprudence. They may be justified in this case and they may not. But what it again underlines is that if the court is engaging in ”œjudicial activism”, shoving aside the legislature to substitute its own judgment about sound public policy, there’s nothing we can do about it. We should not tolerate such a Constitutional arrangement.

The majority decision by Chief Justice Beverly McLachlin actually upheld the sentences in the case before it. But the majority managed to think up a situation where such sentences for the offence in question would be ”œcruel and unusual punishment” and on that basis struck down the law whose result they upheld which was more than a little baroque. One has the feeling they were keen to do so. And what really caught my attention was the claim in justifying this ruling that ”œSentencing is inherently a judicial function.”

In one sense it true: The legislature says what is forbidden, how it is defined, and what range of punishments attaches, while judges decide whether particular individuals have done forbidden things and if so where in the range of punishments they fall. But the notion that the law cannot specify a minimum sentence logically requires that it not be able to specify a maximum either. And in that case legislators, and the people who elect them, would be unable in fact to say what crime was serious and what was not.

Now the Chief Justice, and the concurrent majority, are correct to continue ”œIt is the courts that are directed by Parliament to impose a mandatory minimum term of imprisonment, and it is the duty of the courts to scrutinize the constitutionality of the provision.” But that is not to say that judges may substitute a sociological analysis for a judicial one, deciding that because they find minimum sentences retrograde the public may not disagree. And while the majority in Nur gently say this particular law failed to justify its Charter violation, implying that another one might manage the trick, it is increasingly unclear what we are to do if this suggestion turns out to be untrue.

Here we come to the nub of the problem. Most news stories, and some politicians including Justin Trudeau, sloppily describe what just happened as a defeat of ”œthe government” by the Court. In fact the judiciary is one branch of government, not something apart from, above, and inherently better than ”œthe government.” And this point is not mere nit-picking.

Like every part of government, the courts are full of fallible human beings. And like every part of government they must be subject to checks and balances if those within it are not, with the best of motives and frequently excellent characters and intellects, to start acting as though they could not be wrong simply because they cannot be corrected.

We have seen it happen repeatedly through history. Yet what checks the Canadian judiciary if it overreaches, masks policy preferences in judicial reasoning, and comes to think of itself as august and serene, above the fray and the foibles that beset the rest of us? It matters because normally power tends to corrupt and supreme power corrupts absolutely. So why not judges?

They may have been right here. But what if they were not? In an editorial critical of the R v. Nur ruling, the Globe and Mail said ”œThe law should have been upheld. But the only place this case will be reargued is in law school classrooms. There’s no appeal from the Supreme Court.” True. But if we had checks and balances, there would be. And there should.

There should be some way the other branches, including the directly elected one or perhaps the people themselves, could insist that mere mortals can err even robed in ermine. We would certainly be uneasy if any other branch of government were beyond effective opposition.

Why not this one?