Rory Leishman
The Next City
September 21, 1998
Legislators for life
A coup from the courtroom has usurped our democracy
ON MARCH 6, 1857, THE UNITED STATES SUPREME COURT dropped a political bombshell on the American people in the form of the Dred Scott decision. In this infamous judgment, Chief Justice Roger Taney declared that blacks, slave or free, were not then, and never had been, citizens of the United States. To support this shameful conclusion, the court held that the ringing affirmation in the Declaration of Independence that “all men are created equal” was not intended to apply to blacks because they were “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.”
In this same judgment, the Supreme Court struck down a statute of the U.S. Congress — the historic Missouri Compromise of 1820 — that banned the extension of slavery into the United States’ territories. In the court’s opinion, the law violated the rights of slave owners under the United States Constitution’s Fifth Amendment, which declares that “no person shall be . . . deprived of life, liberty or property, without due process of law.” By presuming to quash a political compromise on this basis, Chief Justice Taney and six of his Supreme Court colleagues inflamed tensions over slavery and helped precipitate the United States Civil War.
People who think non-elected judges should act as politicians by dictating public policy when interpreting the Constitution might keep the disastrous Dred Scott decision in mind. Those who expect judge-politicians to be more progressive than democratically elected legislators should also recall how the 1930s United States Supreme Court tried to sabotage President Franklin Roosevelt’s New Deal by striking down the National Industrial Recovery Act, the Railroad Retirement Act, and the Agricultural Adjustment Act. In response, an outraged Roosevelt announced plans to pack the Supreme Court with liberal judges. Just weeks later, the nine Supreme Court members conjured up a pro-New Deal decision that has been aptly derided as “the switch in time that saved nine.” Thereafter, the judges avoided further confrontations with the Roosevelt administration by respecting the division of powers between the legislative and judicial branches of government, as originally intended by the authors of the United States Constitution.
Canadian constitutional scholars used to view the excesses of American judge-politicians with smug condescension, noting that Canadian courts would never second guess the wisdom of a statute that had been duly enacted into law by elected representatives of the Canadian people. Unfortunately, scholars can no longer make such statements. Since the Charter of Rights and Freedoms was incorporated into our Constitution in 1982, the Supreme Court of Canada has routinely struck down laws enacted by Parliament or a provincial legislature on grounds of policy, amended statutory laws from the bench, ignored the law altogether, and told legislators what laws to enact.
In the past, such high-handed judicial encroachments by non-elected Canadian judges were unthinkable. Today, the inconceivable has become routine.
Striking down laws on grounds of policy
IN THE 1976 CASE MORGENTALER V. THE QUEEN, DR. HENRY MORGENTALER’S lawyers tried to persuade the Supreme Court of Canada to abolish the Criminal Code’s abortion law provisions on the grounds that they violated a woman’s right to individual liberty as guaranteed by Section 1 of the 1960 Canadian Bill of Rights. Chief Justice Bora Laskin, a noted legal scholar and author of a standard textbook, Canadian Constitutional Law, rejected the argument out of hand, declaring “how foreign to our constitutional traditions, to our constitutional law and to our conceptions of judicial review was any interference by a Court with the substantive content of legislation.”
Seven years later, Morgentaler was charged again with violating the Criminal Code’s abortion restrictions. The matter reached the Supreme Court of Canada in R. v. Morgentaler (1988). This time, the counsel for Morgentaler contended that the abortion law encroached upon a woman’s right to individual liberty as guaranteed by Section 7 of the Canadian Charter of Rights and Freedoms. In an about-face, a majority of judges on the court considered the substantive content of the abortion law, decided that it was ill advised, and, on this basis, struck it down.
Madam Justice Bertha Wilson found the law too sweeping, in part because it purported to protect the lives of the unborn throughout a pregnancy. “It would be my view,” she wrote, “that the value to be placed on the fetus as potential life is directly related to the stage of its development during gestation.” She then considered the stage in a pregnancy at which the state might justifiably intervene to protect the life of an unborn child: “It seems to me that it might fall somewhere in the second trimester.”
Professors Rainer Knopff and F. L. Morton of the University of Calgary, two of Canada’s foremost constitutional experts, aptly comment in their book, Charter Politics: “Justice Wilson is admirably frank in admitting that this is only ‘my view,’ which raises the troublesome issue of why ‘her view’ should be preferred to the collective view of Parliament.”
In a dissenting opinion, Mr. Justice William McIntyre raised this same point. He did not challenge Judge Wilson’s views on the evolving value of life in the womb. He did not express any opinion on the morality of abortion. Instead, he argued that the courts should not pass judgment on an abortion law in interpreting the Charter. He insisted: “The solution to this question in this country must be left to Parliament. It is for Parliament to pronounce on, and to direct, social policy. This is not because Parliament can claim all wisdom and knowledge but simply because Parliament is elected for that purpose in a free democracy and, in addition, has the facilities — the exposure to public opinion and information — as well as the political power to make effect its decisions.”
While many pro-choice activists applaud the 1988 Morgentaler ruling, they ought to reflect on the prospect of conservatives one day regaining ascendancy on the Supreme Court and defying Parliament by banning all abortions. Under these circumstances, many of today’s shortsighted Supreme Court supporters would likely insist, and rightly so, that crucial public policy questions should be resolved by elected representatives of the people, not by judge-politicians.
Amending laws from the bench
WHILE THE COURTS HAVE ALWAYS ADAPTED THE LAW AND THE CONSTITUTION to changing social and economic circumstances, the overriding aim of Canadian judges prior to the Charter was to uphold the law’s essential purposes and principles in accordance with judicial precedents and the legislative branch’s original intentions. Certainly, no judge would have dreamed of amending the plain text of a law as enacted by Parliament.
Then came the Federal Court of Appeal’s 1990 Schachter decision, concerning the Unemployment Insurance Act’s benefits for adoptive and natural parents. The law allowed either parent of a newly adopted child to claim benefits while staying at home, but in the case of natural parents, only the mother could receive benefits. This difference did not sit well with a natural father who complained that the law unfairly discriminated against natural parents, contrary to the Charter’s equality rights provisions. Before the Charter, the courts would have invited the complainant to take his grievance to his elected representatives, who alone could change the law. But in Schachter, the court ruled that the law unfairly discriminated against natural parents, and as a remedy, it unilaterally amended the Unemployment Insurance Act to offer parental benefits to both mothers and fathers in the case of natural, as well as adoptive, parents. In reviewing this case, the Supreme Court of Canada set an astonishing precedent by asserting that the Charter has empowered the courts to read new provisions into a statute law if, in the court’s opinion, the change is necessary to make the law conform to the Charter.
Since Schachter, the courts have handed down a number of similar rulings, changing the text of both laws and lawfully authorized government regulations. In one of the most far-reaching cases, Eldridge v. British Columbia (1997), the Supreme Court of Canada gave the government of British Columbia six months to change the province’s Hospital Insurance Act regulations to provide free sign language interpretation for the deaf at all provincial hospitals. In the Supreme Court’s judgment, the B.C. government’s failure to provide this translation service in publicly funded hospitals violated the deaf’s equality rights, as guaranteed in the Charter, to an extent that is not reasonably justifiable in a free and democratic society. Although both the British Columbia Supreme Court and the British Columbia Court of Appeal had come to the opposite conclusion, the Solons of the Supreme Court of Canada dictated the priority of sign language interpretation over other medicare needs, despite lengthy waiting lists for hip replacement surgery, magnetic resonance imaging tests, and other important medical procedures. The potential cost of the Eldridge decision is enormous since it implies that every Canadian hospital must provide translation services not just for the deaf but for other patients who do not speak the hospital’s main language. In a pointed commentary on this judgment, the Centre for Renewal in Public Policy asks, “Is it the place of the Supreme Court of Canada to be overturning policy decisions of an elected legislature in matters such as the allocation of funds in an overburdened health care system?”
Ignoring the law
THE CASE OF ROBERT LATIMER, THE SASKATCHEWAN MAN WHO KILLED HIS severely handicapped daughter, provides a particularly flagrant example of judge-politicians setting aside the law. In sentencing Latimer for second degree murder, Mr. Justice G. E. Noble of the Saskatchewan Court of Queen’s Bench decided that the Criminal Code’s mandatory minimum penalty of 10 years would violate the Charter guarantee against cruel and unusual punishment. Instead, he found Latimer guilty of “compassionate homicide” — a crime unknown to the Criminal Code — and sentenced him to one year in prison, plus 12 months of house arrest.
While many Canadians applauded the verdict, others were horrified. Lost in this debate are the alarming implications of Judge Noble’s flouting of the law. Can the rights of any citizen be secure in a democracy that allows a judge to set aside the Criminal Code in favor of whatever penalty he considers appropriate?
Dictating laws to Parliament
WITH R. V. FEENEY (1997), THE SUPREME COURT OF CANADA TOOK judicial legislation to new extremes. In this case, convicted murderer Michael Feeney had brutally bludgeoned an 85-year-old man to death in Likely, British Columbia. Within hours of the crime, a police officer tracked Feeney down to a house trailer, called out, “police,” entered the dwelling, found Feeney in bed, and arrested him while he was still dressed in a T-shirt splattered with the victim’s blood. When the case came to trial, a jury found Feeney guilty of second degree murder. The British Columbia Court of Appeal unanimously concurred in the verdict; but on further appeal, the Supreme Court of Canada overturned Feeney’s conviction by a five-to-four ruling. In a judgment written by the late Mr. Justice John Sopinka, the court threw out Feeney’s conviction because police entered his residence without a warrant. This was a novel doctrine in Canadian jurisprudence. It conflicts with a common law rule, going back hundreds of years, that lets police forcibly enter private premises without a warrant in making an arrest, provided an officer has reasonable grounds to believe that the suspect has committed an indictable offence. Scarcely 10 years before the Feeney ruling, the Supreme Court of Canada had upheld this common law rule in R. v. Landry (1986).
THE COMMON LAW HAS BEEN APTLY DESCRIBED AS JUDGE-MADE LAW. Unlike statute laws that have always been subject to dramatic change by the legislative branch, common law rules have gradually evolved through thousands of judicial precedents. In the Supreme Court’s 1997 Winnipeg Child and Family Services decision, Madam Justice Beverly McLachlin explained: “As a general rule, judicial change is confined to incremental change based largely on the mechanism of extending an existing principle to new circumstances; courts will not extend the common law where the revision is major and its ramifications complex.”
What, though, did the Supreme Court do in Feeney? It did not just extend the common law: It changed the law altogether. Specifically, Judge Sopinka held that regardless of what the common law provides, the police had violated Feeney’s right to privacy as guaranteed by the Charter of Rights and Freedoms by entering his trailer without a warrant. On this basis, Judge Sopinka not only quashed Feeney’s conviction but also forbade the Crown from presenting the bloody T-shirt and other incriminating evidence that police had found in the trailer.
In a stinging dissent, Madam Justice Claire L’Heureux-Dubé argued that the police officer had done nothing illegal in entering the trailer and arresting Feeney. She insisted that, quite to the contrary, the arresting officer had acted reasonably, responsibly, and in accordance with the common law’s time-tested principles. She also pointed out that excluding the evidence from the trailer could let Feeney off scot-free. But not even this dreadful prospect moved the Supreme Court majority. Judge Sopinka replied: “If the exclusion of this evidence is likely to result in an acquittal of the accused . . . then the Crown is deprived of a conviction based on illegally obtained evidence. Any price to society occasioned by the loss of such a conviction is fully justified in a free and democratic society which is governed by the rule of law.”
With this statement, Judge Sopinka stood truth on its head. Far from affirming the rule of law, he abandoned it. Instead of upholding the common law, he and the Supreme Court imposed their own peculiar ideas of what the law should require. To compound the effrontery, the court gave Parliament just six months to either enact a new arrest warrant law or see the courts release thousands of other criminals on grounds that they, too, had been arrested contrary to the Supreme Court’s newly minted legal requirements.
Senator Anne Cools, a Liberal appointed to the Senate by former prime minister Pierre Trudeau, bristles at such judicial blackmail. During a debate on federal legislation introduced at Judge Sopinka’s bidding, she rebuked him for usurping “the singular and exclusive jurisdiction of the Parliament of Canada.” She told the Senate “that Mr. Justice Sopinka has reviewed Parliament’s wish to pass or not pass a statute, and has made an order that effects a command to Parliament to enact a statute by his deadline as ordered; that Justice Sopinka could come to this Chamber to give royal assent to this same Bill C-16, is an exercise of power unknown to Canada’s constitutional monarchy and, more important, unknown to Canadian parliamentary history and practice.”
LIKE DELIQUENT CHILDREN CRYING, “THE DEVIL MADE US DO IT,” judge-politicians claim that the Charter of Rights and Freedoms has forced them into dictating public policy. Thus, in an extraordinary aside in Vriend v. Alberta (1998), the case that added a sexual orientation provision to Alberta’s human rights legislation, Mr. Justice Frank Iacobucci stated: “It seems that hardly a day goes by without some comment or criticism to the effect that, under the Charter, courts are wrongfully usurping the role of the legislatures. I believe this allegation misunderstands what took place and what was intended when our country adopted the Charter in 1981-82. When the Charter was introduced, Canada went, in the words of former Chief Justice Brian Dickson, from a system of parliamentary supremacy to constitutional supremacy. Simply put, each Canadian was given individual rights and freedoms which no government or legislature could take away. However, as rights and freedoms are not absolute, governments and legislatures could justify the qualification or infringement of these constitutional rights under [Section 1 of the Charter].”
Chief Justice Dickson’s allegation that the Charter makes Parliament subservient to the Constitution is plainly wrong. Parliament has always been subject to the Constitution. Throughout our history, the courts have struck down federal legislation that properly belonged within the provinces’ jurisdictions, and vice versa. The difference today is the disposition of judge-politicians to invoke the Constitution in imposing their policy preferences from the bench. Neither the text nor the history of the Charter justifies this judge-made revolution to the Canadian constitutional order.
All legal authorities acknowledge that human rights and freedoms are not absolute. As Judge Iacobucci noted in his Vriend decision, Section 1 subjects the Charter’s rights and freedoms “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Who, in a democracy, should set those reasonable limits — non-elected judges? Restrained, law-upholding jurists, such as former Supreme Court Judge McIntyre, think not. They insist that only under the most extraordinary circumstances should the courts presume to second-guess legislatures in establishing priorities among the Charter’s often conflicting rights and freedoms. Moreover, contrary to the self-serving claims of judge-politicians, Robert Hawkins and Robert Martin, law professors at the University of Western Ontario, insist that legislators had no intention of relinquishing parliamentary powers to the courts: “The Charter was a typically Canadian compromise, a deal struck after a very politicized negotiation in which it was decided that rights would be protected by the Constitution, but in such a way as to respect, to the greatest degree possible, the supremacy of Parliament. There was to be judicial review, but a fair reading of the historical record shows that it was intended to be careful and restrained judicial review.”
REGARDLESS OF WHAT LEGISLATORS INTENDED IN ENACTING THE CHARTER, the Supreme Court of Canada has renounced judicial restraint and now routinely usurps the constitutional authority of the legislative branch of government. In the process, the Supreme Court undermines freedom and the rule of law. In The Road to Serfdom, a classic study of democracy and dictatorship, Friedrich Hayek noted that “Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law. Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.” No one can be free in a state ruled by a dictator who flouts the rule of law, even if that dictator masquerades as a judge.
Policy-making judge-politicians have no regard for rules fixed and announced beforehand; instead, they lurch from one inconsistent ruling to another. When judges hand down decisions based on their own convictions of what justice requires in a particular case — regardless of the common law, judicial precedents, and the legislative branch’s intentions in enacting ordinary laws, human rights codes, and even the Charter of Rights and Freedoms — chaos inevitably rules in the courts. At a conference of leading Canadian lawyers convened last April by York University’s Osgoode Hall Law School to mark the Charter’s 16th anniversary, Robert Hubbard, a senior counsel for the federal Department of Justice, lamented, “Every time I go to the Supreme Court of Canada, I haven’t a clue what will happen. The only trend I have seen is no trend. Flipping a coin is not a bad way to proceed: At least you have a 50-per-cent chance of winning.”
Other conference participants were no less scornful. Osgoode Hall law professor Jamie Cameron was baffled by the Supreme Court’s quiet deference to Parliament on some questions of law, while stampeding into other areas not even under consideration before it. “There is a lack of any principle to explain patterns of activism or deference in the past year,” he said, “I can’t make heads nor tails of them from one case to another.”
Thanks to the arbitrary will of Supreme Court judges, the law in Canada is no longer permanent, fixed, and knowable. The law is no longer changeable exclusively by Parliament or a provincial legislature. In essence, the rule of law no longer applies in Canada.
Bloopers from the bench
JUDGES, HOWEVER INTELLIGENT AND WELL EDUCATED THEY MIGHT BE, are not omniscient. Neither are they infallible. On the contrary, judge-politicians who tackle difficult political issues from the bench fumble badly. In Watkins v. Olafson (1989), the Supreme Court’s Judge McLachlin acknowledged: “There are sound reasons supporting . . . judicial reluctance to dramatically recast established rules of law. The court may not be in the best position to assess the deficiencies of the existing law, much less problems which may be associated with the changes it might make. The court has before it a single case; major changes in the law should be predicated on a wider view of how the rule will operate in the broad generality of cases. . . . Finally, and perhaps most importantly, there is the long-established principle that in a constitutional democracy it is the legislature, as the elected branch of government, which should assume the major responsibility for law reform.”
Despite this fine restatement of the classic arguments for judicial restraint, the Supreme Court of Canada recklessly plunged into a radical reform of the law in R. v. Askov (1990). In this case, it dismissed charges against an accused who had waited 23 months from the time he was committed to trial in Ontario to his actual trail date. In the Supreme Court’s judgment, 23 months constituted an inordinate delay that violated his right “to be tried within a reasonable time,” as guaranteed in Section 11b of the Charter of Rights and Freedoms. Prior to the Charter, the courts would have let the legislative branch of government determine the maximum reasonable time. In the Askov case, the Supreme Court decreed that regardless of the circumstances, a delay “in the range of some six to eight months between committal and trial might be deemed to be the outside limit of what is reasonable.”
The unintended consequences of this sweeping decision have been calamitous. University of Calgary’s Knopff and Morton report: “In Ontario, 43,640 charges were stayed, dismissed, or withdrawn on the basis of Askov by mid-1991. These included at least one charge of manslaughter, 817 ‘extreme assault’ offences (e.g., assault with a weapon, assault on a police officer, or assault causing bodily harm), 290 sexual assault charges, 402 lesser sex offences, and 11,623 charges of impaired driving.”
In August 1991, at an Advanced Legal Studies conference in Cambridge, England, Mr. Justice Peter Cory, the author of the Askov decision, confessed that he was “shocked” by its aftermath. He blamed Crown counsel for failing to tell the Supreme Court how many people the ruling might affect. That’s a lame excuse. Judge Cory should have remembered Judge McLachlin’s words: Crown attorneys have neither the necessary expertise nor the responsibility to advise judges on the implications of the court’s rulings on complex public policy questions.
When members of Parliament or a provincial legislature consider legislation, they can consult at length with experts within the public service; they can commission studies by outside authorities and gather the views of ordinary citizens in extensive public hearings; they can debate the proposed legislation with other elected representatives of the people; they can hammer out a compromise bill that bears little resemblance to the original legislative proposal; and if despite all these precautions the end result proves wanting, they can amend or repeal the statute. Typically, the courts have none of these advantages. More often than not, when judge-politicians legislate on a major policy issue, they act in the dark. They can set arbitrary time limits between committals and trials in a case like Askov in utter ignorance of the mayhem unleashed as a consequence.
THE GREATEST DANGER POSED BY JUDGES MEDDLING IN LEGISLATIVE BUSINESS may be the loss of public confidence in the integrity of the courts. In the past, judges protected the courts’ reputation for political independence and impartiality by rigorously eschewing partisan politics and scrupulously upholding the law. In Democratic Government and Politics, J. A. Corry and J.
E. Hodgetts explained: “A law that is always changing is uncertain and defeats its own purpose. Moreover, if it is admitted that the judges can change the law, people lose confidence in it and in them. Accordingly, judges are sworn to apply the law as they find it. For the best of reasons, and with complete honesty and considerable truth, the judge insists that he does not make law but only interprets it.”
This passage, written in the late 1940s, accurately describes judges’ attitudes prior to the Charter. Today, most judges no longer even pretend to interpret the law as they find it. In a candid interview with a newspaper reporter, Judge Sopinka maintained: “I think it took a little while for it to sink in that when the court is dealing with Charter cases, they’re not dealing with the law as we used to deal with it. Now, when the court is asked to strike down a statute, it is often dealing with the types of decisions that were made previously by elected representatives.”
With judges openly admitting that they change the law, rather than just interpret it, how long will it take for Canadians to lose confidence in the law and in judges and to view judges with the same contempt reserved for virtually every other kind of politician? How long can respect for democracy and the rule of law last in Canada, once most people lose confidence in the courts’ political independence and impartiality? The answers will soon come if the folly of the judge-politicians on the Supreme Court of Canada continues.
The People v. The Supreme Court of Canada
IN THE OPINION OF MOST JUDGES, MOST LAW PROFESSORS, AND MOST LAWYERS, it’s fine for the courts to supplant Parliament’s lawmaking authority. Lord Acton’s dictum — “Power tends to corrupt and absolute power corrupts absolutely” — applies no less to members of the legal profession than to others. If jurists can seize supreme power under color of upholding human rights, those in their sphere of influence will encourage a courtroom coup, while deluding themselves into thinking that their aggrandizement serves the public interest.
Of course, not all lawyers have succumbed to the temptations of unbridled power. Some of the most eloquent protests against judge-politicians have come from leading lawyers such as Iain Benson of the Centre for Renewal in Public Policy; perspicacious law professors such as the University of Western Ontario’s Robert Hawkins, Ian Hunter, and Robert Martin; and eminent jurists such as former Supreme Court Judge McIntyre and Mr. Justice John McClung of the Alberta Court of Appeal. Nonetheless, for the principles of freedom under law to be revived in Canada, it’s evident that the country’s leading politicians will have to take the initiative. What can they do?
Former Supreme Court Mr. Justice Gerard La Forest, echoing former Chief Justice Lyman Duff some 50 years ago, suggests that Parliament evaluate Supreme Court nominees. The Reform party and the Bloc Québécois endorse the idea; the New Democratic Party calls for a more open process for selecting Supreme Court judges; and the Progressive Conservative Party wants parliamentary review of Supreme Court chief justice nominees. Of all the parties in the House of Commons, only the Liberals oppose any form of parliamentary interrogation of Supreme Court nominees. While this stance by the ruling party seems cynical, it is right to resist political inquisitions of judicial nominees. Ratification hearings in the United States Senate show that candidates for judicial posts adeptly conceal their controversial political views. Even if Parliament could ascertain their opinions, judges change their minds on issues of judicial philosophy and public policy. Subjecting judicial nominees to parliamentary hearings would do more harm than good by further embroiling the judiciary in partisan political controversy.
Abolishing the Charter of Rights and Freedoms would effectively curb the tendency of judge-politicians to seize legislative authority. The Charter is an alien and unnecessary United States-style innovation that is incompatible with our traditions of parliamentary democracy. Canada has always had one of the world’s best records for upholding civil liberties. Even a prominent Charter supporter like Professor Peter Hogg of Osgoode Hall concedes that respect for human rights “has very little to do with the contents of Canada’s (or any other country’s) constitutional law. It is to be found in the democratic character of Canada’s political institutions, supported by long traditions of free elections, opposition parties and a free press. Democracy is without doubt the most important safeguard of civil liberties.”
But revoking the Charter won’t happen any time soon — to do so would require a constitutional amendment approved by the House of Commons and at least two-thirds of the provinces having at least 50 per cent of the provinces’ total population. Garnering such widespread support for any constitutional amendment is practically impossible.
Fortunately, there is another, easier means of remedying many of the Charter’s worst effects: invoking the notwithstanding clause. In his reasons for judgment in Vriend, Judge Iacobucci reminded critics of judicial lawmaking that “Section 33 [of the Charter], the notwithstanding clause, establishes that the final word in our constitutional structure is in fact left to the legislature and not the courts.” Specifically, Section 33 enables a legislature to trump many sections of the Charter by creating a statute that can withstand Charter rules for up to five years.
Shortly after the Charter came into effect in April 1982, René Lévesque’s Parti Québécois government adopted legislation that added a notwithstanding clause to every provincial statute then in force in Quebec. The Quebec Liberal government that came to power in 1985 allowed this blanket use of the notwithstanding clause to lapse after the maximum five-year period in 1987 but invoked Section 33 for five specific pieces of provincial legislation. In all but one instance, the action was non-controversial. The exception was the use of the notwithstanding clause to prevent the Supreme Court of Canada from overturning Bill C-78, a law banning English from outdoor commercial signs in Quebec. While most French-speaking Quebeckers endorsed this policy, many English-speaking Canadians bitterly resented it.
The Saskatchewan Legislature also used Section 33 once in a back-to-work law, which proved unnecessary when the Supreme Court of Canada subsequently approved a nearly identical law. In no other case has any other province or the federal Parliament ever invoked Section 33 to shield legislation from judicial interference.
However, as the Supreme Court of Canada becomes ever more embroiled in political controversy, the pressure on legislators of all political stripes to employ Section 33 will intensify. Last fall, the B.C. Court of Appeal touched off an uproar in the province by setting free a teacher, Ian Cocker, who had been convicted of abusing three girls. Following the Askov case, the court held that Cocker’s conviction, which followed a 17-month wait for trial, could not stand. With some 40,000 criminal cases clogging B.C. courts, the NDP Attorney General Ujjal Dosanjh fears that charges against numerous other sex offenders might have to be dropped because of the impossibility of trying all the suspects within the Supreme Court’s arbitrary deadline. In an address in February to a conference on violence against women, he demanded federal legislation under the notwithstanding clause to let the courts deal with sexual and violence offences. Dosanjh said judges ought to realize “we don’t live in an ideal world, where we have resources coming out of our ears to throw at these things.”
In March, Alberta’s Conservative Justice Minister John Havelock announced that the Ralph Klein government would invoke the notwithstanding clause to prevent the courts from awarding more than a legislated maximum of $150,000 to each of the 700 people who had been made infertile under provincial sterilization policies between 1928 and 1972. Invoking the notwithstanding clause for this purpose was a blunder, so profoundly unpopular that Klein and Havelock quickly reversed themselves. Just three weeks later, the Supreme Court handed down its Vriend decision, and in April, Klein decided against invoking the notwithstanding clause here, too. He explained: “We agreed not to use the notwithstanding clause as it pertains to the narrow scope of this decision. All the Supreme Court decision has done is give people the right to go to the human rights commission with complaints on the grounds of sexual orientation.”
Meanwhile, Klein set up a cabinet committee to prevent the Vriend decision from leading to gay marriages, spousal benefits for homosexual couples, or a homosexual curriculum in sex education courses in schools. If, as seems likely, the courts rule otherwise on any of these points, the pressure on Klein to use the notwithstanding clause to shield the Alberta Human Rights Code from judicial amendment will intensify.
On the federal level, Reform Party MP Jason Kenney has denounced the Vriend decision as “an unprecedented attack on democracy and on our constitutional order in what can only be described as an exercise of raw judicial power. In the name of the Charter of Rights and Freedoms, the court ruled that Albertans do not have the right or freedom to govern themselves.” Kenney reminded the House of Commons that, in reaction to the U.S. Supreme Court’s Dred Scott decision, Abraham Lincoln declared: “If the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court . . . , the people will have ceased to be their own rulers.” To revive democracy in Alberta, Kenney asked the Klein government to hold a provincial referendum on whether the government should invoke the notwithstanding clause to override the Vriend decision.
Using the notwithstanding clause to reign in Supreme Court judges has its limitations. The clause cannot reverse some of the most disastrous Charter rulings, such as Delgamuukw v. British Columbia. In this 1997 case, the Supreme Court set aside the common law rules on property rights in favor of a vague new court-imposed concept of aboriginal title based on an aboriginal group’s historic use of the land. Because of this decision, no one understands the extent of aboriginal entitlement to property rights, particularly in British Columbia. Barring a Supreme Court reversal of Delgamuukw, it could take years of litigation to sort out the confusion caused by this disruptive ruling. Reform Party leader Preston Manning charged that “The decision has created a potential taxpayer liability of literally tens of billions of dollars. These impacts alone are big enough to literally cripple the British Columbia economy.”
Manning is not alone in his dismay. The Delgamuukw decision has provoked widespread alarm in British Columbia. Mel Smith, a former constitutional adviser to four B.C. governments, has denounced this judgment “as one of the most audacious acts of judicial engineering in our history.” Even B.C. Aboriginal Affairs Minister Dale Lovick concedes that uncertainty over aboriginal title to resource properties will make investors nervous. It’s obvious, he says, that “they’re not going to put money in some place where they think, well, one year later we’re going to be in court and have a lawsuit. So, I’m prepared to acknowledge that there is inevitably going to be some cost built in. I think, however, it is not nearly as large as some people would suggest.”
Perhaps Lovick is right, but maybe he is wrong. Suppose economic developments actually bear out Smith’s assertion that Delgamuukw has plunged B.C. into “a state of crisis unlike anything it has faced in its 127 years within the Canadian Confederation.”
What could the legislature of British Columbia or the Parliament of Canada do to eliminate the uncertainty over property rights in B.C.? Precious little, because the Delgamuukw decision is based on the Charter’s aboriginal rights provisions, which are not subject to the notwithstanding clause. Short of enacting a constitutional amendment, neither Parliament nor the
B. C. Legislature can change or revoke the new law. Once again, Canadians are stuck with the potentially devastating economic and social consequences of the Supreme Court’s audacious encroachment on legislative authority.
To reclaim our democracy, legislatures should reassert their supremacy as lawmakers by doing the next best thing to abolishing the Charter — invoking the notwithstanding clause whenever they can. Wherever there is any doubt about popular support for the use of the notwithstanding clause, legislatures should seek mandates from voters in referenda. While this procedure would be cumbersome and expensive, it need not be used often — after two or three humiliating reversals in the ultimate court of appeal — the people speaking in a referendum — even our robed dictators on the Supreme Court would get the message, discouraging more reckless decisions like Delgamuukw.
No one can deny that legislatures have violated minority rights in the past and are bound to make similar mistakes in the future. Surrendering the state’s supreme power to non-elected judges will only make matters worse. The worldwide historical record proves that popular democracy best safeguards against gross violations of human rights and fundamental freedoms by either arrogant judges or abusive politicians. Lincoln was surely right to ask, “Why should there not be a patient confidence in the ultimate justice of the people? Is there any better or equal hope in the world?”
Letters
, MP, Calgary-Nose Hill, responds: November 18, 1998 , Scarborough, Ontario, responds: November 20, 1998 , Kitchener, Ontario, responds: December 7, 1998 , Wasaga Beach, Ontario, responds: December 9, 1998
Diane Ablonczy, MP, Calgary-Nose Hill, responds: November 18, 1998
I commend you on your excellent article. Not only have you illustrated the issue well, but your examination of the democratic implications and possible remedies provides a good basis for understanding and addressing the ills flowing from judicial activism.
Liam Mitchell, Scarborough, Ontario, responds: November 20, 1998
Mr. Leishman argues that judicial review of the executive and legislative branches of government turns members of the Supreme Court into dictators. I strongly disagree.
Laws cannot be viewed in absolute terms. Frequently, situations arise that were not foreseen by those who wrote the laws. Therefore, exceptions must be made. To facilitate this need, we appoint men and women to look beyond the letter of the law and at the intentions which lie behind them. It is for this reason judges exist. Therefore, for Mr. Leishman to criticize judges for doing just this is to suggest the abolition of the profession.
At the apex of the Canadian legal system is the Constitution. Being the supreme law of our nation, all other acts that come forth must conform to its principles. Like most things, such sentiment is ineffective unless enforced. Therefore judges serve to enforce the Constitution, something that even our beloved politicians in Ottawa are not above ignoring. It is for that reason that judges must have the power to review legislation. It is not the court itself that takes priority, but the Constitution, which the court is only a mere tool of.
Mr. Leishman also presented a poor assortment of court cases to support his argument. First, to begin with a ruling by the United States Supreme Court in 1857 does little to explain the circumstances in Canada in the late 1990s. Second, Mr. Leishman completely misrepresented the Schachter decision of 1990. The Supreme Court did not assert “that the Charter has empowered the courts to read new provisions into a statute law.” Instead, it fixed a long-standing wrong within a piece of legislation as its constitutional powers allow it to.
Instead of fearing judicial dictators, Canadians should take solace in the knowledge that they have a judiciary that will defend their constitutional rights. Furthermore, it is the heart of any democracy that the constitution takes precedence over the whims of politicians, thus ensuring protection from tyranny.
Paul Bobier, Kitchener, Ontario, responds: December 7, 1998
This article is a nostalgic promotion of parliaments and provincial legislatures as defenders of personal rights and freedoms. For the most part, however, those days never existed for Canadians. It was the Canadian Charter of Rights and Freedoms that gave individuals the right to challenge government laws in the courts, and forced all levels of government to “charter-proof” their policies. Perhaps Mr. Leishman has never had to challenge provincial or federal legislation that failed to address individual rights and freedoms. Unfortunately, many others have had to do so.
Those who believe court rulings on the charter are “undemocratic” overestimate the legislative branch of government’s democratic character. Consider, for example, the many issues individual voters care about, and how few of them become election issues. In an era where party leaders and their advisors have the most influence on party platforms, and media images influence voter decisions, the public’s ability to set an election’s agenda is limited. In tough economic times, it becomes easier for politicians to gain popularity by “blaming scapegoats” for social problems, instead of advocating fairness or individual freedoms.
Canada’s judges, especially those appointed to supreme courts, have knowledge and education superior to politicians, and they don’t appeal to voter resentment against others, in order to keep their positions. The result is a country more civilized than if politicians ruled without legal restraints. Individuals shouldn’t take the charter’s constitutional protections for granted. Mr. Leishman stated that Canada’s Supreme Court has usurped the constitutional authority of legislative government since our constitution was adopted in 1982. What would be any political party’s upcoming election prospects if its leader promised to remove the Charter of Rights and Freedoms from our constitution? The public would vote against such a policy.
Tim Morgan, Wasaga Beach, Ontario, responds: December 9, 1998
I just read your excellent article on the Supreme Court. I wish every elected official in Canada could and would read it. We indeed live in an oligarchy of nine. More and more, people do not mobilize public support for justice and good. Instead, they appear as humble supplicants before the “chiefs” of the 30 million Canadian clan. They perform a few expensive and arcane rituals, appeal to their generosity and self pride, then hope for the best. Each “justice” makes a decision and then has their multi-million dollar staff try to find as many good reasons for it as they can. It’s bizarre that this is our form of government as we enter the third millennium.
Urban Renaissance Institute 