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Thursday, May 27, 1999

Equality in slavery

Ian Hunter
National Post

In a recent address to law students at the University of Ottawa, Justice Frank Iacobucci of the Supreme Court of Canada officially endorsed the flavour of the month among Charter of Rights sycophants in academe, the judiciary and the profession -- namely, the Charter of Rights as a dialogue. Justice Iacobucci said: "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."

Now, most people would define dialogue as a conversation between equals. But if "we decide and you obey" is dialogue, then it must be admitted that the decibel level of Charter dialoguing has become deafening.

Section 52 of the Constitution Act, 1983, expressly provides that the Charter is "the supreme law of the land." Since the Supreme Court of Canada is its ultimate and unchallengeable interpreter, one might as well call the mouse's encounter with the cat a dialogue. As Ted Morton, a political scientist, succinctly put it: "Obeying orders is not exactly what most of us consider a dialogue."

Of course, there remains the possibility of a provincial Legislature or the federal Parliament finding its voice through Section 33, the so-called notwithstanding clause. But if a decade and a half of Charter experience taught us nothing else, it surely has taught us that Section 33 is a dead letter.

The Delwin Vriend case is illustrative. Mr. Vriend, a homosexual, was dismissed from his employment at a private Christian college in Edmonton. The Alberta Legislature is composed of members, whom the Charter Party consider yahoos, but who happen to be elected by the people of Alberta; this Legislature expressly decided not to include "sexual orientation" as a prohibited ground of discrimination in Alberta's Human Rights Act. The Supreme Court of Canada, however, read in this protection. To put the point simply, the scope of Alberta's statute was decided not by people who must periodically account for what they have done to the provincial electorate, but by unelected judges in Ottawa. Now those in support of the gay-rights agenda think this is a swell development, and perhaps it is. But it is not a democratic result, as Mr. Vriend recognized when he gloated: "Ha, ha, Ralph Klein. I won. You lost." Now I know who elected Ralph Klein, but who, pray tell, elected Delwin Vriend, or for that matter Chief Justice Antonio Lamer, to trump Ralph Klein?

Do Canadians any longer care about democracy? Unlike the dialogue red herring, this is a question worth pondering. Public opinion polls throughout the last decade have demonstrated that the Charter is popular. In a recent poll conducted by Joseph Fletcher, a professor at the University of Toronto, 82% of Canadians considered the Charter "a good thing," and by a 2 to 1 margin they approved of courts overturning legislative decisions.

Such results suggest that Canadians have found self-government burdensome and are content to have decisions on fundamental questions of public policy made by judges. Indeed, many people now equate a majority decision with an unjust decision. Now, I do not deny that there are rare cases where a particularly vulnerable minority needs protection against what John Stuart Mill called "the tyranny of the majority." But the pre-Charter common law (plus the Canadian Bill of Rights, 1960) provided such protection (as evidenced by a string of Supreme Court decisions, such as Roncarelli v. Duplessis; Saumur v. A. G. of Quebec and others) without the sacrifice of democratic self-government.

At a recent confab to celebrate 17 years of Charter dialoguing, Lorraine Weinrib, a professor, said: "The Canadian critics of judicial activism are social conservatives resisting a judiciary they perceive to be impermissibly liberal." What acute powers of perception! We are also, dear professor, people who share a concern expressed by one of those DWEMs (Dead White European Males) whom you are unlikely any longer to encounter at the University of Toronto -- Alexis de Tocqueville by name, who a century ago sounded this warning: "Democratic communities have a natural taste for freedom: left to themselves, they will seek it, cherish it, and view any privation of it with regret. But for equality, their passion is ardent, insatiable, incessant, invincible: They call for equality in freedom; and if they cannot obtain that, they still call for equality in slavery."

Ian Hunter is Professor Emeritus in the Faculty of Law at the University of Western Ontario.

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