National Post

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Thursday, March 25, 1999

Judge defends decisions affecting social policies
Rare public speech

Sheldon Alberts
National Post

OTTAWA - Supreme Court decisions that strike down or rewrite legislation should be viewed as a "dialogue" with parliamentarians, not an attempt to trample over elected officials, says a veteran member of Canada's top court.

In a rare public speech, Justice Frank Iacobucci yesterday defended the Supreme Court against charges it is usurping the powers of legislatures when making decisions affecting Canada's social policy.

"I don't want to leave anyone with the impression that I endorse a categorical view of judicial supremacy over matters of constitutional interpretation," Judge Iacobucci told law students at the University of Ottawa.

"It is important to understand that when the Supreme Court of Canada assumes the responsibility of judicial review of duly enacted legislation, it is engaging in a process of dialogue with the legislature rather than exercising a veto."

His lecture drew rousing applause from the student audience, but was labelled "arrogance in the extreme" by a frequent Supreme Court critic at the University of Western Ontario.

"He suggests that the court is there like a group of professors who are setting final exams for the legislatures, that Parliament is like a student essay to be marked," said Robert Martin, a UWO law professor.

"This is utterly fanciful. This notion of a dialogue is invented by judges who have taken it upon themselves to make the Constitution up as they go along."

Judge Iacobucci, who has served on the Supreme Court for eight years, said Canada's jurists are "caught between the proverbial rock and a hard place" when reviewing laws to determine if they adhere to Canada's Constitution and Charter of Rights and Freedoms.

"Any judicial decision either to limit or to defer to legislative intent is immediately subject to criticism that the court is either elitist or too amenable to populist pressures," he said.

Canada's Supreme Court and other lower courts have faced increasing criticism in recent years for their so-called 'judicial activism.'

The Alberta government threatened last year to invoke the charter's notwithstanding clause -- a constitutional over-ride allowing governments to set aside court rulings for five years -- in the Delwin Vriend case after the Supreme Court "read in" protection against discrimination for gays and lesbians into provincial human rights law.

This year, Reformers demanded the use of the notwithstanding clause after a British Columbia court freed an accused paedophile because it ruled charges against him violated his rights under the Charter of Rights and Freedoms.

In those cases and others, critics of the courts argued that judges were acting as de facto parliamentarians, even though they had no democratic authority.

But Judge Iacobucci said the judiciary's right to invalidate laws affecting individual rights was formalized with the charter's introduction.

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