Judge-made lawMonday, May 24, 1999
The Glove and Mail
Each socially controversial judgment of the Supreme Court of Canada sheds a little more public light on the Constitution, especially the Charter of Rights and Freedoms.
Since the Charter was included in the Constitution in 1982, with the agreement of Canada, the United Kingdom and all the provinces except Quebec, the laws of our legislatures have been subject to the higher law of the Charter, as interpreted by the courts. When the courts strike down the law of a legislature, they are doing so on the instruction of a legislature. That's what the Charter is for.
There is, admittedly, a distinction between striking down a law, and effectively amending it by "reading in" language that the legislature did not originally write. "Reading in" should be avoided in most cases, and legislatures should normally be sent back to the drawing board to bring impugned laws into conformity with the courts.
In the case of a gay man from Alberta (Delwin Vriend) who claimed that the exclusion of homosexuals from Alberta's human rights laws was unconstitutional, the Supreme Court chose to add the protection itself, rather than require Alberta to do so within a certain time period. The Court decided there was a risk to human rights protection for other minorities because Alberta might let its human rights law lapse, rather than amend it. And so the Court read in the protection of homosexuals. It was justifiable, if controversial.
In the case this week of M versus H, the Court sensibly allowed Ontario six months to bring the Family Law Act into conformity with its judgment that the act unreasonably discriminated against homosexuals. Only if Ontario fails to act, will the law actually expire.
In both cases, legislatures have the option of overriding the court by use of the "notwithstanding" clause in the Constitution. So let's cool the rhetoric about "judge-made law." The courts are giving life to the Charter that our legislatures themselves created, and our legislatures have reserved the right to say no in most cases if they really don't like what the courts and the Charter say. Democracy lives.
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