National Post

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Thursday, July 29, 1999

Taking the law in vain

Ian Hunter
National Post

Antonio Lamer, the Chief Justice of Canada, has never been a man noted for his modesty. But when he deigned to grant an audience to Janice Tibbetts in the National Post, his comments exceeded even his own robust standards of braggadocio.

"Thank God we're here," he told Ms. Tibbetts.

Now would that be the same deity being thanked whom the chief justice and his puisne colleagues have laboured assiduously to rid Canadian law of any trace of?

Two millennia before Antonio Lamer was a gleam in his father's eye, the Psalmist wrote these words: "He that sitteth in the Heavens shall laugh, the Lord shall hold him in derision."

The chief justice went on to say: "It is not for me to criticize legislators but if they choose not to legislate, that's their doing."

What the chief justice did not add is that if legislators choose to legislate, as did the Alberta Legislature twice on the content of its human rights law, and the court does not like what the Legislature chooses to do, the court will amend the legislation (see R. v. Vriend). Or, if the Parliament of Canada crafts an acceptable political compromise on the intractable issue of abortion, and the Supreme Court does not like how it operates in practice, the court will nullify it (see R. v. Morgentaler), leaving Canada alone among countries in the Western world in having no law on abortion.

Or, if the gay rights lobby claims exclusion from Ontario's Family Law Act, the court will include them (see M. v H.). In short, the Supreme Court of Canada will strike down, read in, read down, read out, amend, supplement, nullify, and order the legislatures to act, but it will never, never criticize.

This is Canadian democracy, Lamer-style.

The chief justice went on: "When I read, when I hear, that the courts have become activist, well it hasn't become activist under my stewardship. With the introduction of the Charter [of Rights], it fundamentally changed our judicial system."

On the latter statement, at least, both critics (like me) and the court's many apologists (including most academics) agree.

The Charter has fundamentally changed Canada from a country of parliamentary supremacy to a country of constitutional supremacy. And since constitutions are not self-interpreting, in practice that means a country of judicial supremacy.

It is refreshing to see the chief justice acknowledge this. For most of the first two decades of the Charter's existence, the court and its supporters denied the Charter had wrought any such fundamental change.

The court has always struck down legislation, was the party line, only now the grounds for doing so have been somewhat expanded.

Under the British North America Act, the sturdy 1867 Constitution that served Canada well for more than a century until Pierre Trudeau, the prime minister at the time, took it into his head in 1982 to fashion a constitution in his own image, the superior courts supervised the division of legislative powers between the federal government and the provinces.

If either legislature exceeded its allotted jurisdiction, the court would declare the ensuing legislation ultra vires.

From that judicial role, as arbiter of the division of powers in a federal state, to the kind of judicial activism (and why does the chief justice not celebrate the ascription?) that the Lamer court routinely engages in, is to travel light-years.

It may be true that elephants and chipmunks are both mammals, but to fail to acknowledge the difference between them is to engage in wilful deception.

To the charge that the Supreme Court of Canada has been dominated by political correctness, ruling disproportionately in favour of aboriginals, gays, and women, the chief justice was quoted as saying that the court was "just keeping in sync with society."

Ian Hunter is professor emeritus in the Faculty of Law at the University of Western Ontario.

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