National Post

Tuesday, February 23, 1999

Judging judges

National Post

Canadian judges in recent months have denied allegations that they exercise too much political power. Yet last month one judge in British Columbia flummoxed the thinking world by striking down Criminal Code provisions against the possession of child pornography as inconsistent with the Charter of Rights and Freedoms. This week, the Supreme Court of Canada will rule on whether female firefighters must meet the same fitness requirements as their male counterparts. And almost every week a judge somewhere strikes down a law passed democratically by Parliament or a provincial legislature. To most people -- including the constitutional law expert, Professor Ian Hunter, on the facing page -- this looks like unbridled power.

Although judges wield political power, they dislike being subject to the criticisms that elected politicians experience daily. At a recent meeting of the Canadian Bar Association, Chief Justice Antonio Lamer denounced pundits and newspaper editorialists who engage in "judge bashing."

In an interview with the National Post, Gerard La Forest, the retired Supreme Court of Canada justice, gave a reasoned defence of judge-made law: "The concerns [that critics of legal activism] express are because restraints are put on governments by the Constitution, which they created. You create a Constitution. It is taken seriously."

Mr. Justice La Forest has a point. But when Ottawa and the provincial governments pushed through the Charter, most Canadians believed judges would continue to abide by the British and Canadian traditions of judicial restraint rather than the American one of judicial law-making. That has not happened. As judges have realized the irresponsible power they possess, so they have abused it.

A partial defence against such abuse exists in the "notwithstanding clause" (Section 33), which gives Parliament ultimate authority over the judiciary. But constitutional lawyers friendly to judicial power now assert that Sec. 33 is a constitutional dead letter. As long ago as 1988, indeed, the president of the British Columbia Civil Liberties Association said absurdly that its use would be "constitutional vandalism." Their argument is that since the clause was a concession to gain the support of recalcitrant premiers for the Charter, it should be discounted. But the entire Charter was a compromise. Should we ignore other provisions as well? And if so, which ones? A basic rule of legal interpretation, mutatis mutandis, states that parties to an agreement such as the Charter mean what they say they mean. Hence the attacks on Sec. 33 are threadbare rationalizations of judicial despotism.

This modest critique of judicial activism -- most recently articulated by Ralph Klein, the Alberta Premier, in a speech at the United Alternative convention -- seeks merely to ensure that the original terms of the Charter be respected. And Canada's thin-skinned judges should learn to be less sensitive. But the fundamental question that must be asked is whether a constitutional system that routinely allows unelected judges to decide vital political disputes really deserves the name of democracy.

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