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Saturday, April 08, 2000

High court's rulings add to confusion, experts argue
Luiza Chwialkowska
National Post

TORONTO - The Supreme Court's most recent, controversial rulings have created new confusion and uncertainty on issues of equality rights, legal rights of accused criminals, and the interpretation of aboriginal treaties, lawyers and scholars told a constitutional conference yesterday.

The Supreme Court decision in the case of Nancy Law, that pension legislation denying survivor benefits to spouses under 35 years of age did not discriminate against a 30-year-old woman, introduced a new concept into its analysis of equality under the Charter. The Supreme Court said the law did not discriminate because it did not violate Ms. Law's "human dignity."

"A laudable statement, but what does it mean?"asked Christopher Bredt, a constitutional lawyer, as he addressed the conference at Osgoode Hall Law School.

Cynthia Peterson, a Toronto lawyer, said rather than clarifying the controversial area of equality, "the test is so malleable and flexible that you can still have widely divergent outcomes."

Patrick Monahan, professor of constitutional law at Osgoode Hall, said the Surpeme Court's 1999 equality decisions, though confusing, were the year's most important constitutional developments because they led to "a quite dramatic legislative response," by both the federal and Ontario governments to amend dozens of statutes to extend benefits to same-sex couples.

Justice Rosalie Abella, of the Ontario Court of Appeal, told the conference that the contentious debate over the judiciary's relationship with lawmakers highlights "a complaint that the Charter has created too many rights for too many people.

"A democracy is enhanced, not cauterized, by a judiciary effectively fulfilling its Charter mandate," she said.

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