The Federal Court Redux

Cheif Justice Alan Lufty of the Federal Court has referred to the Federal Court as the 'unknown court'. Indeed it is a court that is little known to most Canadians and for various reasons (fear, unwillingness to deal with the different rules) lawyers avoided this court if they could find any way to do so (except for exotic breeds of lawyers like patent litigators, but enough on that). One of the traditional reasons for avoiding the Federal Court was the belief that given its specialized interest in matters related to the Federal government it was the Federal government's 'pet' court and someone challenging the government could expect to recieve shortshrift.

Today the Federal Court gave further evidence that this last concern is, in fact, unjustified. Stephen Harper's New Government recently tried to gut part of the National Wheat Board's monopoly by allowing for 'two desk' trading in barley. This was viewed as a first step toward largely abolishing Wheat Board's monopoly on all matters. What was notable about this effort was that it was done without legislation. The Wheat Board itself challenged this action in Federal Court and today suceeded, forcing the Stephen Harper's New Government to face the daunting prospect of taking this change to the Wheat Board to a divided minority Parliament.

My money is on Stephen chickening out.

The Federal Court though has now held Canada's feet to the fire on a number of big issues in recent years, including arbitrarily denying passports to purported terrorists, granting bail to immigrants held in house arrest for years on secret evidence, failing to consult with small aboriginal groups on the Mackenzie Gas project and lifting part of the Federal government's decision to supress parts of the Arar Report. The Federal Government has won plenty of cases but it is not enough for the Department of Justice to merely show up and introduce themselves to win. Instead things are as they should be -- you can't tell who will win by their name.

This is good news for all Canadians. The Federal Court traditionally dealt with a range of technical matters such as tax, immigration, and intellectual property where their specialized knowledge served all parties well. However, increasingly in recent years Parliament has given the Federal Court increased powers in areas that touch on all of our liberties and it is comforting to know that the Court will not be acting as the Federal Government's 'pet' court -- unless the Feds know that their pet will be biting back from time to time.