Globe and Mail

Rights a thorny issue for jurists

Supreme Court judges lauded for tackling social issues and blamed for 'naked power grab

Saturday, April 17, 1999
KIRK MAKIN Justice Reporter, Toronto
The Globe and Mail

A stream of well-meaning but unpredictable human-rights decisions from the Supreme Court of Canada may end up setting back the cause of minority rights, a senior Ontario government lawyer told a legal conference yesterday.

Lawyer Robert Charney said governments are becoming wary that at any time, the court could order federal or provincial human-rights commissions to bring a new minority group under their protection.

"The danger is that it will actually impede social-policy reform," said Mr. Charney, a senior constitutional lawyer.

He said government could ultimately draw back from the human-rights area or simply refuse to increase funding, forcing the commissions to spread themselves impossibly thin.

Mr. Charney was speaking at an annual conference organized by Osgoode Hall Law School, where lawyers and academics thrash out the Supreme Court and its most recent judgments.

Yesterday's speakers alternately praised the court as coming to grips with prickly issues legislators are too cowardly to tackle, or criticized the judges as shamelessly grasping at power.

Ted Morton, a University of Calgary political science professor, spoke scathingly of the 1998 case of Delwin Vriend, in which the court inserted gay rights into the protections guaranteed under Alberta's human-rights legislation.

"To its critics -- and I am one Vriend is nothing more than a naked power grab," Prof. Morton said. He said the court has been shockingly susceptible to the lobbying of special-interest groups, such as gays and feminists.

However, Osgoode Hall law professor Bruce Ryder countered that the Vriend decision was a courageous- one exposing the "bigotry" of those who oppose extending basic human rights to gays.

Prof. Ryder said parliamentarians are only too delighted to foist controversial social issues such as gay rights onto the courts, only to turn around and loudly criticize judges once they render their decisions.

Judges are well aware of this "cynical ploy, Prof. Ryder said, adding that the judiciary is growing increasingly unhappy about it.

Toronto lawyer Mary Eberts said the court has become so passive about the Charter of Rights in recent years that in the absence of the Vriend case, the Charter would have disappeared from view altogether.

She flatly dismissed a claim from Prof. Morton that feminists have been wildly and unacceptably successful in fighting cases in the Supreme Court. The real message of these cases, she said, is that underfinanced groups are being forced to undertake expensive litigation to fend off ill-founded attacks from "well-financed groups of white men."

Another Osgoode Hall law professor, Alan Young, was critical of the court for not providing clear guidance in important areas such as search and seizure.

"The court is capable of making monumental change, but often it is just too sleepy to bother," Prof. Young said. "I feel like the court is going through a judicial identity crisis. They are not comfortable with their role of setting investigative practice for police.

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