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January 13, 2001

Supreme court goes 'too far': judge

Bastarache says justices should more often defer to will of Parliament in Charter cases

Cristin Schmitz
Southam News
National Post

OTTAWA - Canada's highest court sometimes goes "too far" in Charter of Rights rulings that favour the rights of the accused over those of the rest of society, says Supreme Court Justice Michel Bastarache, who argues that "it's important for the court to be in step with the general public."

"In criminal law, I am more conservative than the majority of the court over the last few years," the former University of Moncton law dean said in a rare interview that sheds light on philosophical divisions in the high court.

"My own view is that the court has gone too far in certain areas in criminal law, and not in others, and that over time the pendulum tends to come back," said Judge Bastarache, who vigorously has dissented in 30% of the cases the court has ruled on since he was appointed in 1997.

Judge Bastarache said he favours a more deferential approach to Parliament than some of his colleagues when assessing whether laws comply with the Charter.

"I think that legal principle is distinct from legal policy, and that policy is for Parliament and principle is for the courts," he said, adding that it's not always easy to distinguish between the two.

"I don't think that we have a mandate to sort of define a whole social policy for Canada," he said, referring to the Supreme Court's role as guardian of the Constitution.

"What is possible in a free and democratic society has to be interpreted in terms also of the role of Parliament in determining policy for the country," he said.

Judge Bastarache, who at 53 is the court's youngest member, said he disagrees "fundamentally" with important aspects of the Charter legacy of recently retired chief justice Antonio Lamer, who for a decade led a liberal five-judge majority of the court that gave robust interpretations to the Charter's guarantees of individual rights.

According to Judge Bastarache, many of the minimum constitutional standards set by the Lamer court were too sweeping, going far beyond those in the United States and Europe and what Parliament intended when it adopted the Charter in 1982.

The judge said that he hopes to convince the court to revisit a number of key legal principles, such as what he considers to be a too expansive approach to the Charter's guarantee of a fair trial. The guarantee includes a rule that evidence obtained by police from a detained person as a result of unconstitutional searches or seizures must automatically be thrown out because admitting such evidence always makes the trial unfair.

"I don't think there is any legal support for that," he said. "I think it's an invention of the court, a principle that was created by the court, and I think it's inconsistent with the very wording of [the Charter], with the intention of Parliament ... and I also think it's totally unrealistic."

The judge's comments were part of a lengthy, candid interview to be published in The Lawyers Weekly next week.

Judge Bastarache stressed the Supreme Court never follows public opinion because its decisions are based on legal principles and on the rule of law.

On the same subject this month, Chief Justice Beverley McLachlin said the court would not be rushed into making hasty judgments by public pressure in controversial cases. "We are not there to respond to this or that particular public pressure at a particular moment."

But Judge Bastarache added, "It's important for the court to be in step with the general public.

"The rule of law reflects a certain understanding of society's concerns, and the Constitution is also a political document, and in that sense, I think it's still a question of line-drawing: Are you, in the interpretation of the Charter, extending the rights that Parliament really wanted to protect?" he asked.

"I think that public opinion does count, too, in that sense, because the court's legitimacy can at some point be questioned if it's consistently seen by a majority of people as going too far, as extending rights, as having sort of an agenda, and that's not something that we want.

"I'm not saying that's the case now, but I personally would favour reconsidering a certain number of decisions of the court."

Judge Bastarache has been among the stalwarts of the Supreme Court's conservative wing in criminal cases, which also includes Justices Claire L'Heureux-Dubé and Charles Gonthier, who retire in the next two years, and, often, Chief Justice McLachlin.

In criminal cases where the court has divided recently, the three most recent appointees to the court, Justices Ian Binnie, Louise Arbour and Louis LeBel, have leaned toward more liberal interpretations of the Charter rights of accused people.

"The majority of the court right now is difficult to determine because its composition has changed and we haven't had these critical decisions that would position everybody again," Judge Bastarache said. "Our court has been divided 5-4 on these issues, and as the composition of the court changes, I think these things have to be debated again."

Judge Bastarache said he believes the Lamer court "went very far in looking at the substantive law and determining whether Parliament had the right to impose, for instance, the very conditions under which a crime would be created. This means you are way beyond a due process kind of approach."

The judge also noted a number of cases "where I think the court extended the rights accorded under the Charter because it viewed that as being something that should be favoured, something that was justifiable policy-wise."

For example, the basic Charter right of an arrested person to be informed of the right to retain a lawyer was expanded to impose a number of other requirements on police, such as providing a list of telephone numbers and other assistance.

"I'm not saying that it's not a good thing," Judge Bastarache emphasized. "But I'm not sure that it was for the court to determine that."

The judge said he advocates a rigorous, consistent approach to constitutional review of legislation. This requires determining the purpose of the law based on what the legislature's intention was at the time the law was passed.

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