National Post

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Wednesday, November 24, 1999

Supreme Court must be reined in, McGill professor says
'Judicial monopoly': Calls for more use of notwithstanding clause
Campbell Clark
National Post

MONTREAL - The Supreme Court of Canada is "out of control" and should be reined in by legislators willing to override the court's more activist decisions, Christopher Manfredi, a McGill University political science professor, argued yesterday.

In a lecture to the university's Institute for the Study of Canada, Prof. Manfredi said recent Supreme Court decisions have confirmed fears that the court is exceeding the traditional role of adjudicator and becoming a policy "micro-manager." He argued the court has taken on an extremely wide interpretive power, and has shown itself willing to use different standards in rulings so that it can achieve its desired policy goals.

He said legislators should impose checks on the power of the court and be more willing to use the so-called "notwithstanding clause" that allows Parliament and the provincial Legislatures to override the Canadian Charter of Rights and Freedoms.

"We can't accept a judicial monopoly on the interpretation of rights," said Prof. Manfredi, who has done extensive research on the court's role. "We seem to have lost the notion that it is legitimate for other branches to check what the judges do."

Questions over judicial review of Charter issues have grown since 1982 when the Canadian Charter of Rights and Freedoms provided the courts with broadened powers to strike down legislation.

Some see such reviews as protection against government abuse, but others argue the courts have taken on excessive powers they were not intended to wield.

However, Prof. Manfredi's proposed remedy -- accepting the legitimacy of the use of the notwithstanding clause -- may prove equally controversial.

The clause has not been used since 1988, when the Liberal government of Quebec, headed by the late Robert Bourassa, invoked it to protect language restrictions on signs that had been struck down by the Supreme Court. Resorting to the clause has come to be viewed by many, particularly anglophone Quebecers, as morally unacceptable.

That case has restricted the use of the clause, allowing judges to escape the checks on powers that constitutions are intended to provide, Prof. Manfredi said. "We had a use of the notwithstanding clause that people found repugnant before we had a judicial review that people found repugnant."

Prof. Manfredi charged that Supreme Court judges have piously and falsely claimed the court is merely exercising the duty foist upon it by the constitution with reserve, when in fact it has broadened its own powers. For example, the court has widened interpretation of section 15 of the Charter, which prohibits discrimination against a list of nine groups, to allow it to restrict indirect interpretation against similar groups, he said.

He said recent gay-rights decisions striking down family law in Alberta and the M v. H case in Ontario, where the court ruled that the definition of spouse in Ontario's family act unfairly denied alimony to partners in same-sex relationships, show the court is using that interpretation to overturn political decisions it does not like.

Prof. Manfredi argued that the constitution does not provide specific protection against discrimination on the grounds of sexual orientation, and Ontario's Legislature had debated whether to expand the definition when the NDP was in power, but a free vote in the Legislature rejected the measure.

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