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February 10, 2001

Bill would force Supreme Court to respect Parliament

To apply to Charter issues: Legislators' intent should be main concern, MP says

Jason Logan
Southam News
National Post

OTTAWA - The Supreme Court Act should legally force the country's highest court to consider Parliament's intentions when interpreting Charter challenges, and should prevent split decisions on constitutional cases from binding lower courts, Liberal MP John Bryden says.

The Ontario backbencher, who called for the amendments in a private member's bill tabled last week, said yesterday the spirit of Parliament's wishes should be the overriding concern in Charter issues.

"I do feel it's high time Parliament take back the power it never surrendered," Mr. Bryden said. "The intentions of Parliament are absolutely, fundamentally important."

But Patrick Monahan, a professor at Osgoode Hall Law School in Toronto, says amending the Supreme Court Act would be a waste of time because it has been established since the 1976 Anti-Inflation Act decision that the court looks at House of Commons debates when making decisions.

But Mr. Bryden says there is no proof of that.

"I want to guarantee that they consider Parliament. I want there to be no doubt. The fact they're doing it now doesn't mean they'll do it tomorrow. And there's no way of making sure they will," he said. However, his bill does not spell out how to ensure that is done.

Mr. Monahan says restricting precedents to only unanimous decisions of the Supreme Court is contrary to the rule of law.

"That proposal is inconsistent with the basic principle of a final appellate court such as the Supreme Court of Canada," he says.

And Tom Flanagan, a political science professor at the University of Calgary, says, "it's not such a good idea to have unanimous decisions outweigh non-unanimous decisions. You're losing that element of finality."

But Mr. Bryden points to the 1999 Donald Marshall case, a 5-2 ruling by the Supreme Court of Canada, as a perfect example of why split decisions should not bind lower courts.

The Marshall decision upheld 1760 treaty rights allowing Mi'kmaq and Maliseet bands to fish and hunt commercially. Natives used the decision to fish out of season, leading to continued unrest among non-natives in the East Coast commercial fishing industry.

Mr. Bryden said he drew up the bill in response to the Marshall decision.

"When the court is unanimous it's confirming law, when it's divided it's creating law."

The bill is up for second reading in a couple of weeks. Mr. Bryden said he expects the bill to reach debate in the House because it is not a money bill. However, without government support, very few private member's bills make it past second reading.

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