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Friday, April 09, 1999

Top court judges shy away from rewriting laws: study
98 rulings reviewed

Janice Tibbetts
Southam News

OTTAWA - There is little evidence the Supreme Court tends to trample the will of elected politicians by constantly ordering them to rewrite laws, concludes a study of the court over the last three years.

On the contrary, the judges are more prone to shy away from judicial activism, according to the academic study to be released next week at a York University conference on the Supreme Court.

"If anything, they could be faulted in some cases for not being active enough," said Patrick Monahan, a professor at York's Osgoode Hall Law School who compiled the study with a team of student researchers.

The findings appear to contradict growing criticism that the court is overstepping its bounds by constantly striking down federal and provincial laws.

"I think basically what we're saying, when you look at the overall record, it's difficult to see where the court is usurping the role of the legislature," said Mr. Monahan, a well-known Supreme Court observer.

"Our findings indicate that the Supreme Court has not been cutting a large swath through the federal and provincial statute books."

Mr. Monahan looked at almost 100 constitutional rulings handed down between 1996 and 1998 and found the high court struck down federal or provincial legislation in 12 instances. But the judges usually included suggestions on how the legislation could be modestly rewritten to conform to the Constitution, as it did when it outlawed spending limits in Quebec referendum legislation in 1997.

The study finds the judges have been no more prone to judicial activism in the last three years than they have been since being handed greater interpretive powers when the Charter of Rights and Freedoms came into effect 17 years ago.

The findings are in keeping with a 1996 study by the law school that reached the same conclusions.

Recent critics of judicial powers have included two distinguished former premiers, Alberta's Peter Lougheed and Saskatchewan's Allan Blakeney, who said federal and provincial governments should not be afraid to use the Constitution's notwithstanding clause to override judge-made laws offending the public good.

The notwithstanding clause in the Charter allows Parliament and provincial legislatures to set aside court judgments for up to five years. The provision, intended as a safety valve of last resort, has rarely been used because politicians consider it to be politically unpopular.

In 1987, the Quebec government faced a public backlash after using the clause to override a Supreme Court ruling that struck down the province's language laws.

Ralph Klein, Alberta's Premier, threatened to use the clause last year to thwart a Supreme Court ruling in the case of Delwin Vriend, when the court ordered the Alberta government to include protection for homosexuals in its human rights laws.

Mr. Monahan said the Vriend ruling is the only case in the last three years in which a government would be justified in invoking the notwithstanding clause since it is difficult to detect "undue judicial activism" in the remaining 11 cases in which the court struck down laws as unconstitutional.

Of the 98 cases studied, half dealt with the constitutional validity of laws. Others focused on whether specific actions of police or government officials violated the Charter.

For instance, in 1997, the high court enraged the country's police officers when it ruled they needed a warrant to enter a private residence to make an arrest.

But Mr. Monahan said the decision did not amount to judicial activism because the court was interpreting the privacy provisions of the Charter rather than striking down an existing law.

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