National Post

Tuesday, February 23, 1999

Supreme Court decisions raise critics' hackles
Recent child porn ruling a 'rallying cry' for citizens, Day says

Elena Cherney
National Post

A series of precedent-setting rulings on issues such as homosexuality, child pornography, and native land claims has fuelled attacks on judges whose rulings are at odds with public opinion, critics of judicial activism said yesterday.

The most recent example of judicial activism, and the one which riled the crowd at the United

Alternative conference, is that of British Columbia Supreme Court Justice Duncan Shaw, who ruled last month that possession of child pornography is protected by the Charter of Rights and Freedoms.

"This will be the rallying cry," said Stockwell Day, Alberta Treasurer and one of the organizers of the United Alternative conference. "This one will be the one that will make citizens say, 'This time the judges went too far.' "

A Reform-sponsored motion to overturn the Shaw decision, possibly by using the notwithstanding clause, was defeated in the House of Commons, but Anne McLellan, the Justice Minister, has joined the B.C. attorney general's appeal against the ruling.

The B.C. case is not the first time a Supreme Court ruling has angered Canadians. In Alberta, a Supreme Court ruling which directed the province to include protection from discrimination based on sexual orientation in its human rights legislation left many feeling the court had overstepped its bounds, said Fay Orr, communications director for Ralph Klein, the Alberta premier.

Delwin Vriend, an instructor at Edmonton Christian college, claimed he was fired in 1991 because he is gay, and was denied an appeal to the Alberta Human Rights Commission because sexual orientation was not recognized as a basis of discrimination.

Mr. Klein's government debated in caucus the possibility of invoking the notwithstanding clause of the Constitution to avoid extending human rights protection to homosexuals, but decided to accept the Supreme Court ruling.

Another B.C. case, this one a native land-claims ruling, sparked criticism from the right wing that the Supreme Court had jumped ahead of the law. The ruling, which recognized broad native land claims, opened up the definition of aboriginal rights for re-

interpretation, and led native rights groups to return to the courts for resolution of land-claims disputes.

John Reynolds, justice critic for the Reform Party, points to a ruling on the rights of refugee claimants who are convicted drug dealers as an example of an overly zealous judiciary.

The Supreme Court ruled last year that a Sri Lankan man, Veluppillai Pushpanathan, was entitled to apply for refugee status despite his conviction on drug trafficking charges. That decision angered Mr. Reynolds. "A judge in a case like that is not thinking about what impact their decisions have on society," he said.

"Legislatures have certainly shown restraint" with the notwithstanding clause, Mr. Day said. "For it to be used a few times, I don't think we're going to see a political reaction."

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