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Thursday, April 06, 2000

Rein in lobby groups, senior judges suggest
'We've opened the door probably too widely,' Supreme Court justice tells Post
Luiza Chwialkowska
National Post

OTTAWA - Three senior judges of the Supreme Court of Canada categorically reject accusations that the high court has been "hijacked" by special interest groups, but say the time may have come to reduce access to the court by advocacy organizations.

Chief Justice Beverley McLachlin, Justice Michel Bastarache and Justice John Major, during an interview with the National Post, acknowledged the court's expanded and controversial role in reviewing laws passed by elected legislators, but did not unanimously agree whether their task of judicial review can be best described as a constitutional "dialogue" with lawmakers.

"I think [using] the word 'dialogue' between courts and Parliament is trying to fit a square peg into a round hole," Judge Major said of the metaphor popular among defenders of the court's power to invalidate legislation.

In a candid discussion held in the chambers of the chief justice, the judges reflected on the history of the court on the occasion of its 125th anniversary, and the tremendous change in its role since the Supreme Court Act was granted royal assent on April 8, 1875.

"The court has grown and changed enormously over the last 125 years," said Judge McLachlin, citing a "litigation explosion" and the advent of the 1982 Charter of Rights and Freedoms.

"Suddenly the court was not just dealing with contracts, torts and the occasional division of powers case. It was dealing with matters of people's rights and freedoms. And so the profile became much higher," said the chief justice, appointed to the court in 1989.

The judges unanimously dismissed allegations that the court is helping organized lobbies of minorities, homosexuals and feminists subvert the parliamentary process to achieve their policy goals.

A new book by Ted Morton, a University of Calgary political scientist, argues the court has been "hijacked" by interest groups.

"Any suggestion that the court has been hijacked by interest groups is totally false," said Judge McLachlin.

"Many times the cases that come before us ask us to make rulings that affect not only the parties but a wide range of other people. So it's only just and fair that we allow those other people to present their viewpoints," she said, defending the court's practice of allowing "intervenors," often publicly funded non-profit lobby groups, who participate in cases in which they have no direct stake.

A recent study shows that the Canadian Civil Liberties Association and LEAF, the Women's Legal Education and Action Fund, are among the most frequent intervenors before the court.

But the judges denied that they favour select advocacy groups such as LEAF, which was on the winning side of all three cases in which it intervened in 1999.

"In fact, what has probably been a mistake is that we've opened the door probably too widely to intervenors," said Judge Major, appointed to the court in 1992.

He, however, dismissed the notion of a "hijacking."

"How does this hijacking happen? That's what I'd like them to tell us," he said. "Do [critics] think we say, 'Oh, intervenors! They're right. We have no choice. People are going to be mad at us if we don't do this!' Do they think we have no sense of responsibility?"

Nonetheless, the judges suggested that they may scale down the court access enjoyed by intervenors.

"I think there is some reason for us to reconsider our general policy on intervenors simply because of the fact that we have lived with the Charter for 18 years and we have a lot of experience in interpreting the Charter," Judge Bastarache said.

"There isn't the same need there was in 1982 to obtain help from intervenors," he said.

The court informed lawyers last August that oral arguments allowed to intervenors would be reduced.

Judge Bastarache said the debate over intervenors has wrongly portrayed the protection of minority rights as a policy choice of the court.

"The Charter is meant to protect special interests and to protect minorities. Therefore it is quite normal that minorities are going to take advantage of the Charter in securing their position in society and trying to advance their rights," he said.

"The reason the court has opened its doors to listen to special interest groups after the Charter was adopted was because we had a new type of legislation which forced the court really to adopt a really contextual approach ... And I think minorities are the most apt people to speak about their situation," said Judge Bastarache, who joined the court in 1997.

Judge Bastarache called the theoretical "dialogue" between the court and legislatures "very real."

"The dialogue between the court and Parliament is a natural and proven thing," agreed Judge McLachlin.

"We don't consider ourselves the final word on things. We rule on the legal question that is put before us, and then the matter goes back to Parliament and the legislatures take it up. Usually, they amend the law or re-enact it or whatever to remedy the constitutional defect."

However, Judge Major questioned the accuracy of the dialogue image.

"When I hear 'dialogue' in its usual term, you'd think we were talking -- that we call Parliament up and chit-chat," he said.

"We feel we are servants of the government and we have a particular role with respect to them that is distinct," he said.

Asked whether Anne McLellan, the Justice Minister, is correct to say court decisions have left the government no choice but to introduce controversial legislation extending the benefits and obligations to same-sex couples, the chief justice said, "I wouldn't want to get into a particular case, but generally one can say that when we say a certain particular law is inconsistent with the Charter, there is some room to manoeuvre, and often there is a great deal of room."

Judge Major dismissed as "ludicrous" Mr. Morton's suggestions that young Supreme Court clerks wield influence over decisions and bring new radical theories to the court.

"This court is not hijacked by intervenors and it is not hijacked by its own personnel," agreed the chief justice.

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