A rchive Date
[ 05-01-2004 ]
Category
[ International Relations ]
sub-Categoy
[ Canada ]
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[Top court activists subverting rule of law
By Rory Leishman
August 4, 2000
Peter McCormick, a political science professor at the University of Lethbridge, has entitled his latest book, Supreme at Last: The Evolution of the Supreme Court of Canada. It's an apt title for a study that details how judicial activists in the charter era have subverted both the rule of law and supremacy of Parliament.
This is not to suggest McCormick views the Supreme Court in this subversive light. To the contrary, he is an enthusiastic supporter of the disposition of judicial activists to invoke the charter as a pretence for changing, rather than upholding, the Constitution and the laws of Canada.
"The Court has not just survived," he enthuses, "but thrived on the challenge . . . of the charter."
Prior to the 1970s, Canadian judges would not have dared to change the law to accord with their support for gay rights and other trendy ideological fads. They were all committed to what McCormick calls legal formalism -- a determination to abide by judicial precedents and the strict letter of the law and the Constitution as enacted by elected representatives of the people in the legislative branch.
Quoting from an article in the Yale Law Journal, McCormick notes "the concept of decision-making according to rule" lies at the heart of formalism. In deciding cases, judges undertake to uphold "an established legal rule which binds them" and which "is applied because the law requires it, not because the judges believe it is a desirable rule."
In short, Canadian judges used to uphold the rule of law. They invited opponents of a law to appeal to elected legislators, not to the courts, to get the law changed.
With rare exceptions, judges no longer exercise such democratic restraint. Since the Canadian Charter of Rights and Freedoms came into effect in 1982, most members of the Supreme Court have abandoned formalism for a contextual approach to decision-making that gives judges free rein to change the law as they see fit.
In accordance with this new contextual judicial philosophy, both a trial judge and the British Columbia Court of Appeal have ruled the ban on the possession of child pornography in the Criminal Code violates the freedoms of thought, belief, opinion and expression as guaranteed in the charter. The matter is now before the Supreme Court of Canada.
McCormick thinks a majority on the Supreme Court "may very well go along" with the lower courts in striking down the law banning possession of child pornography, despite massive public opposition to such an outcome. "Could this be the charter straw that breaks the back of public support (for the Supreme Court)?" he asks.
"I believe the answer is 'almost certainly not,' " responds McCormick. "This is the court that tackled the abortion issue, the most divisive issue in Western industrialized societies in the late 20th century, and came away without a scratch ... This is the court that took on Alberta's Ralph Klein over gay rights. This is the court that has found the marriage laws of most provinces unconstitutional."
McCormick does not favour abject defence to our judicial masters.
"The courts do not have a monopoly on the interpretation of the charter," he writes. "They are not infallible."
In his opinion, we need "to find the way of making judicial independence fully congruent with majority rule, so we protect the judges who are making decisions that involve principled but unpopular applications of the law, but not the judges who make decisions based on their own biases and prejudices."
What is the solution?
McCormick contends that, "The notwithstanding clause, Section 33 of the charter, was intended to provide just such a mechanism," by allowing legislators to shelter laws from judicial interference for five years at a time.
Prime Minister Jean Chretien has vowed never to invoke this notwithstanding clause. So long as he and his Liberals hold power in Ottawa, there can be no hope that Parliament will rectify even the most perverse, preposterous and unpopular Supreme Court rulings.
In refreshing contrast, Canadian Alliance Leader Stockwell Day has vowed to call for invocation of the notwithstanding clause to overturn a Supreme Court decision upholding the B.C. kiddie porn rulings.
This, alone, is a sound reason for Canadians to back Day and the Canadian Alliance in the next federal election.
 World Fact Book (CIA)]]
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