National Post

April 13, 2002

High court's rulings curb provincial laws

Analysis suggests Supreme Court tool for social policy

Luiza Chwialkowska
National Post

Dave Chan, National Post
Supreme Court Justices Claire L'Heureux-Dubé...

Wayne Cuddington, Ottawa Citizen
...and Charles Gonthier who retire this year, have been strong defenders of federal laws.

TORONTO - The Supreme Court of Canada strikes down provincial laws more stridently than those made by Parliament, and is forcing provinces to adopt common standards in some social policy areas, a new analysis suggests.

"Overall, provinces have had a far wider range of laws or actions struck down than has the federal government," Patrick Monahan, a professor at Osgoode Hall Law School, told a constitutional law conference yesterday.

In the past five years, the top court struck down or limited the application of eight federal laws and 13 provincial laws. But five of the federal losses were "minor" and resulted in only small alterations to criminal statutes or other laws, Prof. Monahan told an audience of lawyers, scholars, and judges.

In sharp contrast, provincial governments were handed 13 losses, of which all but one were "significant," and forced provincial governments to reverse policy, he said. The provincial defeats ranged from the rewriting of provincial human rights code to include sexual orientation, the striking down of a law barring agriculture workers from forming unions, and the extension of spousal support to same-sex couples.

The court appears to demand a certain level in conformity among provinces, he said in an interview.

"You have a wider range of variation from one province to another, and the court is, in some sense, imposing a kind of a national standard," he said.

"So that, in the province of Alberta, or Ontario, or elsewhere, to the extent that the politics there turns in a different direction, the Supreme Court is imposing a national standard," he said.

"Take the issue of gays and lesbians, for example. To the extent that the province of Alberta may have a different approach to that issue, the Supreme Court is reflecting an approach that is a national approach, a single approach," he said.

Meanwhile, the federal government successfully defended itself on 17 different occasions from major challenges that would have rewritten pension laws, struck down gun control, or invalidated protections for the privacy of alleged rape victims during trials.

Similarly, constitutional challenges to the discretion and decisions of government officials were more successful when aimed at the provincial level.

Six cases succeeded against the actions of federal officials, and all but one dealt with immigration and refugee issues.

Meanwhile, 18 successful challenges were brought against provincial government actions, and they covered a wide variety of areas, from hospital services for the hearing impaired, to police practices, French language schools and legal aid in family courts.

Prof. Monahan denied the court is biased against conservative governments.

"In some cases [the rulings] involved governments that were not prepared to extend rights to minority groups such as gays and lesbians, but I'm not sure that you can generalize from that that conservative governments like the Harris or Klein governments were more likely to have their laws struck down," he said.

The federal government's fortunes could be strongly influenced by the next two appointments to the court, he noted.

Justices Claire L'Heureux-Dubé and Charles Gonthier, expected to retire in the coming year, have been the court's strongest defenders of federal laws.

With his next appointment to the court, Jean Chrétien, the Prime Minister, will have appointed the majority of Supreme Court judges.

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