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Wednesday, August 25, 1999

Taking liberties with the law
Ian Hunter
National Post

'In lapidary prose," Dr. Johnson once observed, "a man is not upon his oath." At the end of a career, as at the end of a life, bouquets not brickbats are in order. So, over the five months leading up to his early and unexpected retirement as Supreme Court Chief Justice in January, 2000, Antonio Lamer will receive a paean of praise.

Judge Lamer's name will be inextricably linked to the Charter of Rights and Freedoms. One's view of his judicial legacy will depend, in large measure, on whether one approves or disapproves of the Charter. Since most commentators, and certainly most lawyers, approve of the Charter and its transformation of Canada from a system of parliamentary supremacy to judicial supremacy, they will find Antonio Lamer's enthusiastic contribution to this transformation praiseworthy.

As it happens, from the podium and in print, I have lately been engaged in what the chief justice last summer called "judge bashing." I have made bold to suggest the Supreme Court might leaven its oracular ideological pronouncements with a modicum of law; that if the Supreme Court finds it necessary to reverse a provincial appellate court, it should do so without giving lower court judges, such as Justice John McClung, a public spanking; that the court might exhibit some deference to the decisions of Parliament. Things like that. What has surprised me has been the reaction.

Not the reaction from the Supreme Court. When Supreme Court judges respond to criticism, whether in a judgment (like Justice Frank Iacobucci in Vriend) or in speeches at the nation's law schools, the response invariably takes one of two forms: either (a) that their critics are ill-informed; or (b) that their critics may be right, but the Charter made us do it (what I call the Flip Wilson speech).

The former tack begins by pointing out that the Charter was passed democratically; therefore, those who accuse the Supreme Court of usurping Parliament are, ipso facto, wrong. (Of course the Charter's origins are something less than a bright and shining moment in Canadian democracy, but let it pass.) The Flip Wilson speech, by contrast, affects a certain fetching modesty about judicial competence, but insists the Charter leaves the courts no alternative but to rewrite Canadian law.

But it is the reaction of lower court judges, and of the public, that I wish to consider here.

A number of lower court judges have gone out of their way recently to call me up or to write, all to say much the same thing, namely, "We agree. The Supreme Court is out of control." One lower court judge told me he and some of his brethren considered the Supreme Court of Canada "a public embarrassment." Of course these judges are not about to do a "McClung" by writing a letter to the National Post venting their dismay. But they are upset. And they invariably finish up saying: "But what can we do?"

I realize that only judges who share my criticisms are likely to seek me out to tell me so; but even if such disgruntled judges are but a tiny minority, it is significant that they exist at all. They fondly remember a tradition of judging that was less political, more circumspect, when judges interpreted rather than made law, when judges considered statutes passed by an elected Parliament to be binding, not empty vessels into which the court could pour their own policies. They recall a time when judges decided cases on the narrowest legal issue presented to them, when rules governed such things as standing, intervention, mootness, and the use of extrinsic evidence. They hearken back to justices with names like Duff, Cartwright, MacIntyre, Estey and Laforest.

Public reaction has been mixed. Many people seem to grasp that the Charter of Rights somehow effected a radical disjuncture in Canadian history, but they have difficulty expressing just how that change came about or what its effect has been. Others find it difficult to imagine how anything but good can flow from a "charter of rights."

As for Canadians under the age of 30, they cannot imagine how liberties could have existed in Canada prior to the Charter. My students thought Canada must have been a police state until that happy day when Pierre Trudeau happened along with his Charter.

It encourages me that some people have begun to express doubts about the Charter and its expansive interpretation by the courts. As a political issue "judicial hubris" may not yet show up in Gallup polls, but my own decidedly informal sampling suggests there is a fairly widespread view that something is seriously wrong in Canada, and that our malaise is related to the Charter and its interpretation. But most people say: "What can we do?"

What indeed? Judges enjoy the most iron-clad security of tenure that exists in Canada. It will take time, and better minds than mine, to work out Antonio Lamer's legacy. In 20 years on the Supreme Court he sat in judgment on more than 1,000 appeals. No one ever doubted his capacity for hard work. Whether that hard work resulted in a better Canada is open to question.

- Andrew Coyne's column will return.

Ian Hunter is professor emeritus in the faculty of law at the University of Western Ontario.

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