Toronto Star

October 24, 1999

Judging the judges of Canada

By Richard Gwyn
Toronto Star

SAYETH THE FIRST wise person in a loud, clear voice: ``The law is the law is the law, and must be obeyed.''

Sayeth the second wise person in a voice as strong and firm but edged with just a bit of irritation: ``But sometimes the law is a ass, an idiot.''

Then speaketh up an especially wise person, seated in the lotus position on a high mountain peak: ``Use the law to correct the law. Use the Notwithstanding clause that is part of your own law. Klutzes. Dummies.''

Twice in recent weeks the law has behaved like a ass, an idiot. The Supreme Court ruling on the native fishery in the Maritimes. The Federal Court ruling early this week on a pay equity claim.

With great wisdom, the Supreme Court accepted that the ``honour of the union,'' in the phrase of the majority ruling, required that a 230-year-old treaty by the British crown be interpreted creatively to grant native people the right to make a ``modest living'' from the fishery.

But that admirable judgment was handed down in a way that has had the appalling effect of setting two groups of poor people - commercial fishers and natives - against each other, at times violently, and of dividing the kind of small communities where people need to depend upon each other.

Government should have anticipated court ruling

Of course, the government should have anticipated the Supreme Court ruling. In fact, though, two lower courts had gone the other way.

But the judges knew what they were about to do and yet did nothing. They failed to minimize the succeeding damage as they could have done easily by giving the two sides negotiating room by setting a six-month or year-long delay in the implementation of the decision (after 230 years, another one would hardly make a difference).

The pay equity decision by the Federal Court takes a clumsily drafted 1978 law and interprets it literally. A group of mostly female civil servants will receive back pay and lost interest, totalling something above $3 billion, even though they had been receiving higher pay than their equivalents in the private sector. Supposedly, though, they had been receiving less than some male workers in different jobs that the Human Rights Commission judged were at the same skill level of the female workers - though it has no expertise in salaries and job classificiations.

Pay equity judgments on this multi-billion-dollar scale were never contemplated when the legislation was originally enacted. That's why no provision exists to achieve equity in the most obvious way - by reducing the pay of the supposedly overpaid male workers. The Federal Court ignored this reality. So an abnormally huge settlement will be paid out of funds that will now not be available for all other kinds of social and economic projects, from child care to university research.

Judges failed to take consequences into account

In both these judgments, and in others, the judges have been accused of acting like politicians. Far better that they had. Instead, they failed to act like politicians. They failed, that is, to take into account the consequences of their actions, as if the law were an intellectual abstraction.

A remedy does exist. The Constitution provides for Parliament, and for the provincial legislatures on matters within their jurisdiction, to use the so-called Notwithstanding clause to set aside, or to modify or to delay, the judgment of the courts. The law, that's to say, contains within itself the means to correct errors in the law.

Repeatedly, though, Prime Minister Jean Chrétien and his ministers have insisted they will not use the Notwithstanding clause. Their reason isn't these two troubling cases. Instead, it's because in 1988, Quebec's then premier Robert Bourassa invoked the Notwithstanding clause to set aside a decision of the Supreme Court that overruled the French-only provisions in Quebec's Language Charter, Bill 101.

That was politics at its worst. It touched off a backlash in the rest of the country that led to the defeat of the Meech Lake accord. Ever since, the Notwithstanding clause has been tainted. As critically, Ottawa fears that if it ever resorts to the clause, Quebec would gain justification for using the device whenever it pleases. These concerns are legitimate. But they are insufficient. The clause exists to be used, because not using it leads to bad law. The single requirement is that it be used sparingly and with precision.

Using it would have one highly desirable consequence. For the first time, the judges would be aware they, themselves, are being judged. Thereafter, they'd make not different judgments but more careful ones.

Richard Gwyn's column appears Wednesday, Friday and Sunday in The Star. He can be reached at