National Post

Wednesday, March 03, 1999

Judge not

National Post

Two of Canada's most distinguished former premiers, Alberta Conservative Peter Lougheed and Saskatchewan New Democrat Allan Blakeney, are dismayed by the erosion of parliamentary sovereignty and the growth in judicial law making. With good reason. Since the Charter of Rights and Freedoms was passed in 1982, laws and sections of laws too numerous to count have been overturned by judges. The most recent example was the ruling on child pornography in British Columbia.

It was the two premiers who took the lead in enshrining the notwithstanding clause (Section 33) in the Charter -- allowing legislatures to overrule judge-made law. Academics and Charter enthusiasts, however, constantly decry the use of this section either as "constitutional vandalism" (since the court's supposed monopoly on Charter interpretations is undermined) or as "illegitimate" (since the section was "only" included to ensure passage of the Charter).

They point out that the democratic override clause -- the only recourse to restrain judicial activism and protect the value of the vote -- was included to ensure parliamentary supremacy, not as an afterthought. More important, they argue that it must now be invoked by governments lest it become the dead letter its critics would like. That is the fate suffered by the similar Article III, Section 2 of the U.S. constitution.

We congratulate the two premiers on their initiative and urge them to lead a public campaign to restore Parliament's and the voter's supremacy to Canadian government. Democracy is too important to be left to the judges.

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