Toronto Star

Monday, March 8, 1999

Behold, a knight in shining error

David Ablett, The Star's editorial board
Toronto Star

The misguided missive from Mr. Justice John J. McClung about Madam Justice Claire L'Heureux-Dubé has provoked open political warfare.

All this over a particularly maladroit letter? Something else must surely be involved. It is. And we might as well deal with it right now.

The real issue is the Charter of Rights and Freedoms. The effort to hollow it out is focused in the Reform party and its curious child, the Alternative phoning any old Joe with which to be United. Like Reform, it's also Alberta-driven - one more Prairie fire.

But, because of the McClung imbroglio, it has spread far beyond Alberta's fundamentalist fringes.

These grass fires aren't new, of course. The flames regularly break Alberta's confines, sear the country, then flame out. The last big one, starting in the oil patch, stuck us with a constitutional amending formula which, unfortunately, doesn't work. Reform, too, was a flare-up. The United Alternative may be its flame-out.

The Charter issue is heavy breathing on the embers. What the issue lacks is the fuel of public support - four in five Canadians still like a Charter. How do you stop their liking it? Linking it - in a principled way, of course - to crime and perversion has possibilities.

It does stretch plausibility, of course, for Preston Manning - who, three makeovers ago, reviled ``politicians'' - now to rally us to them as a shining defence against moral decay and the doom that impends if people keeping asserting their right to think bad thoughts. But that's the case for Parliament over the courts.

But a martyr would also help. And McClung is heaven-sent - perfect as knight in shining armour defending civilization from among the very forces of Charter darkness.

Since his 1996 ruling nailing ``constitutionally hyperactive judges pronouncing on all our emerging laws according to their own values'' his knight suit shines with righteous glory.

They loved his line that``when unelected judges choose to legislate, parliamentary checks, balances and conventions are simply shelved.'' Our parliament, in its version of the British fusion - or equipoise, as they liked to call it - of King, Lords and Commons, doesn't work that way, of course. Checks and balances are an American conception.

But that was McClung's view in Delwin Vriend's case, and they ate it up. Gay rights were involved, too. Sex. And it didn't hurt McClung's political standing a bit when the Supreme Court landed on him like a unanimous ton of bricks for saying it.

The heavy artillery shells came pouring back from the right - basically picking up McClung's lines about unelected judges. Never mind that McClung, too, is unelected - he's their unelected judge.

When Mr. Justice Duncan Shaw of B.C. weighed in with his judgment that child pornography laws offend the Charter, the guns grew louder against the Charter. Sex again, you might have noticed.

Now, with the Supreme Court's second ton of bricks, overturning McClung in the no-means-no case, his status as judicial martyr is confirmed. That he writes vigorously - who would have thought a judge would restore the word crinoline to everyday usage? - is a huge plus. Sex again, incidentally.

There is a minor matter. Judges are not supposed to be political martyrs, or demons. They're there to be impartial and seen as such. But let us note only that equal access to impartial justice is fundamental to our having a democracy and leave it at that.

But what of an elected Parliament as a better guardian of our rights?

The flaw in this is rather bigger. Parliament doesn't protect rights. By its very nature, it abrogates rights, because it is - it has to be - controlled by the majority. What it does is bring all the accumulated power of the majority to bear against the minority - because those who need to assert their rights are almost inevitably in a minority.

It would be nice to think differently, but Parliament hasn't really protected rights since it stood between ``free Englishmen'' and divine kings. Since 1689, when the English wrote down their Bill of Rights, the real problem has been protecting freemen from Parliament. The Yanks blamed King George, but Parliament lost the colonies - in part by abrogating the legal right of habeus corpus in the Quebec Act.

But go ahead. Test that idea. Did the majority in Parliament free Donald Marshall, David Milgaard, Guy-Paul Morin? Or did lawyers using the law overcome the barricades the majority in Parliament placed between them and final justice in the courts?

The most recent debate? Reform wanted, with considerable popular support, to override the rights Mr. Justice Shaw found persuasive in the B.C. child pornography case.

The Vriend case? Alberta tried to evade the Charter. Judges said the legislature couldn't do that.

Beyond that, rummage through all our history. Parliament imposed the head tax on Chinese railway workers, interned the Japanese in the mountains, sanctioned use of the War Measures Act, let McKenzie King leave a boatload of Jewish refugees wondering if they'd be sent back to death camps.

Provincial legislatures passed the Alberta Press Law and the Quebec Padlock Law, restrained the Jehovah's Witnesses. Unelected judges upheld their rights.

And as often as not since 1867, the courts have upheld rights - not simply on the basis of common law - but by testing one law against another, just as they test laws now against the Charter, and deciding which is to prevail. Indeed, in a federation with 11 parliamentary supremacies, how else could it run? When it does.

That did leave our rights resting on a thin reed. You can't abridge my rights because the other guys have the power to do that. And it did leave all Canadians equal but with 11 different sets of rights. It's not inspiring. But neither does it demonstrate courts any less constitutional than what we have now.

The idea the Charter should be eliminated - or loopholed into hollowness - needs to be seen for what it is. It's but a way to take power back from the weak and restore it to the strong. Lead on, McClung.

David Ablett is a member of The Star's editorial board.

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