Toronto Star

Apr. 16, 01:00 EDT

Courts and Parliament: Seeking a fine balance

Canada's top judge defends `activist' role of Supreme Court

Tonda MacCharles and Graham Fraser
OTTAWA BUREAU
Toronto Star

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Supreme Court of Canada
OTTAWA In her walnut-lined chambers with a clear view of Parliament Hill, Chief Justice Beverley McLachlin is keenly aware of the charges facing the Supreme Court of Canada.

It's too activist. It's too deferential. It sticks its nose in policy. It rewrites laws. It's taken over the job of Parliament. It's been cowed by the critics.

Now, on the 20th anniversary of the Charter of Rights and Freedoms, Canada's top judge takes on her best lawyerly voice and calm demeanour to defend the country's top court, and launches a sharp-tongued rebuttal of her own.

Yes, the Charter changed the court's work, McLachlin says. But fundamentally, judges do a job now that is not all that different than what they have always done, she argues.

"Judges have always made law and I suppose been `activist' in the common law tradition."

Take the law of negligence. A British court ruling, not consumer legislation, forced on modern manufacturers a duty to take reasonable care to avoid harm to others with their products a decision in favour of a woman who found a snail in a bottle of ginger beer.

"That was judge-made law and it was very activist," says McLachlin. "It's been accepted in the British model, which we inherited, that courts can and do and must make law in the sense that they're applying older precedents to new situations. And they have to keep up with the realities of society when they are applying them.

"Judges have always been doing this, point number one. Now, when you do have constitutional issues of rights and collective interests, and you have this balancing, certainly there's a dimension of judicial activity there that was not there before."

Yet McLachlin also says that in breathing life into the Charter, the high court has developed "doctrines of restraint and appropriate deference to Parliament and the legislatures."

In those heady first few years when the Charter was brand new, McLachlin admits she was one of many people who were "surprised" as she watched from the vantage point of a British Columbia trial court bench while the Supreme Court tackled the document with gusto.

"People were expecting, I think, that the court would be very conservative which it had generally been in interpreting the (1960) Bill of Rights." In 22 years before the Charter came along, the high court struck down only one law under the old rights bill, which was merely a statute like any other, not a core part of the constitution.

Instead, McLachlin believes, the Supreme Court took to heart the vibrant debate about individual rights that engaged Canadians, and inspired by that, boldly said in its very first Charter decision "this document means something."

It was a message that reached the political halls of power, too.

Roy McMurtry was then Ontario's Conservative attorney-general and an architect of the Charter. Now, he is Ontario's chief justice and, as a member of the judiciary, interprets the Charter as a judge.

"I don't think any of us anticipated that the Supreme Court would be as activist as it became," McMurtry says in an interview. "We knew the role of the courts would change dramatically with the Charter. But it was hard to anticipate what would happen."

McMurtry, who like McLachlin had expected more judicial restraint, was "pleasantly surprised" to see the Supreme Court under the late chief justice Brian Dickson take a broad approach in defining the meaning of the new Charter.

For McMurtry (who as a young lawyer opposed Pierre Trudeau's use of the War Measures Act), the Charter represents Canada's commitment to individual rights, and the court upheld that commitment.

McLachlin says then and now, the top court also understood the clear signal from Parliament in the very first words of Canada's Charter. Section 1 says the cherished rights in our free and democratic society can be curtailed by "reasonable limits."

"This puts balancing of the collective interests versus individual rights at the centre of every issue." That, she says, means judges can and must take on the task of reviewing policy, no matter what the critics say.

"I don't think you can avoid making those kind of balancing, policy decisions anytime you have rights entrenched in a constitution. The United States has an absolutist kind of `Congress shall make no law' approach, absolute terms. But nevertheless the courts have had to find a balance of collective interests because absolute freedom of expression, for example, is simply not possible in a democracy.

"Our Section 1 means that we bring that kind of balancing out into the open and we acknowledge it, which I think is a good approach."

But many critics in academic circles, along with the Canadian Alliance and the Progressive Conservatives, decry the role judges now play.

They talk about the Court Party.

It is shorthand for saying that Canadian judges are in the saddle and make more important decisions about the way we live than elected politicians do.

"Who is the Court Party?" asks Calgary constitutional law professor Ted Morton, co-author of The Court Party and the Charter Revolution. "At one level, it is the now familiar coalition of interest groups that regularly appear in our courtrooms using Charter litigation to pursue policy demands that elected governments have rejected: feminists, civil libertarians, gay rights activists, aboriginals, francophones outside of Quebec, anglophones inside of Quebec, environmentalists, immigration advocacy groups, prisoners' rights groups, visible minority groups, and so on."

University of Calgary political scientist Rainer Knopf, Morton's co-author, says his concern is the court gets the final say in defining what rights mean, with the result that there is less possibility of political compromise.

"Can we agree that what the court says is a right is a matter of reasonable disagreement?" he asks. "Even the judges disagree, for goodness sake!"

The argument has a loud voice in Parliament in the Canadian Alliance.

"We now have politicians sitting in judicial offices, there's no question about it," says Alliance justice critic Vic Toews, formerly a Conservative Manitoba attorney-general. "They implement policy that was previously the domain of politicians."

Toews criticizes decisions by the high court to extend commercial free speech to the tobacco industry, to "read into" Canada's anti-pornography law a defence to exempt self-created artistic works (visual or other) made for oneself, to extend rights to gays, to strike down the abortion law, and to virtually rule out extradition of fugitives where there's a possibility of the death penalty.

"I think it is important for Parliament to make those determinations based on (its) understanding of ultimately what's acceptable to people."

Instead, the Charter has made parliamentarians "irrelevant," he says, by providing politicians with an easy excuse not to do things, or to hand off tough questions to the court. It has driven interest groups to the court because "it's an easier process. There's one person that you have to convince initially, then three at the court of appeal, and then seven (or nine) at the Supreme Court," Toews says.

"It's undermining democratic institutions and democratic accountability. That's the real danger of how we have implemented and interpreted our Charter."

He advocates a parliamentary vetting process for judicial appointments. "Judges don't leave their views at the courtroom door, so let's get their views out in the open." He even suggests term limits.

The federal government says it appoints federal and Supreme Court judges only after a long, exhaustive, though private, consultation process.

Toews lets out a loud belly laugh at that. As a provincial attorney-general, he says, he was hardly ever consulted on a judicial appointment in his area, and the two times he was, the names on the list were "all prominent Liberals."

The court's critics are not only conservatives.

Michael Mandel of Osgoode Hall Law School agrees the Charter has had the profoundly undemocratic effect of transferring power from elected representatives to unelected judges, but does so in a way that reinforces the status quo and existing economic power, and exacerbates Canada's already great social inequalities.

"After 20 years, has the Charter made us freer and more equal? No," Mandel says. "We have more people behind bars now than we did in 1981, even though violent crime has gone down. In terms of freedom and equality, we were far better off before the Charter."

The Charter, he argues in his book The Charter of Rights and the Legalization of Politics in Canada, has "weighed in on the side of power and, in both crude and subtle ways, has undermined popular movements as varied as the anti-nuclear movement, the labour movement, the nationalist movement in Quebec, the aboriginal peoples' movement and the women's movement."

There is evidence for both positions.

If there is no abortion legislation in Canada, if the country is divisible, if there are clear rules for how a province can separate, if Prince Edward Island has to provide a French-language school in Summerside, if those seeking refugee status have all the legal rights of Canadian citizens, if gays are in the Canadian military, it is not because a government has said so.

The Canadian Forces did not wait for a ruling before deciding that the Charter would be interpreted in a way that would ensure that gays had the right to serve in the military.

Some, like University of Ottawa criminal law professor David Paccioco, believe the high court has now taken a pragmatic turn.

"It's becoming more and more deferential," says Paccioco, who occasionally appears before the court. "In the early years of the Charter, it took its role as guardians of those constitutional rights more aggressively than it has lately."

Recent rulings have tempered earlier protections, such as the right to a speedy trial, the right to full Crown disclosure of evidence, the right to be free from unreasonable searches without a judge's authorization.

Kent Roach, author of The Supreme Court on Trial, and many others say there is an ongoing "dialogue" between the court and the legislatures with laws getting scrutinized, and when struck down, redrafted by the legislatures. "The Charter is part of this democratic dialogue," he said in an interview. "And it doesn't and it shouldn't give the court the last word."

The high court has cited the "dialogue" metaphor in its judgments. But McLachlin says it is just that. Judges don't literally talk to politicians, nor is the court swayed or governed by opinion polls, though she is quick to note that the Charter is supported by a majority of Canadians.

She rejects any suggestion the court has been cowed by the intense political debate that has swirled around its rulings, saying there is little evidence to point to such a trend in the court's judgments. It still strikes down unconstitutional laws. But often, instead of creating chaos by striking down entire legislative schemes, it will "read in" narrow fixes, or suspend declarations of a law's invalidity until the politicians can redraft the law.

"Creative remedies," McLachlin calls them, not in response to political pressure but out of a desire to make sure change happens in an "orderly" fashion. "I think we have to, just as we hope Parliament and the legislatures respect the important work of the courts, we, as the courts, have to respect the role of Parliament and the legislatures."

McLachlin says the court is more apt to defer in "difficult policy-ridden" matters "where you have complex social schemes," yet in other areas, like criminal law, is well suited to weigh legal precedent and underlying policy in judging state laws or actions.

Judges, she says, recognize many issues are best left to legislatures that have elected representatives, committees and bureaucracies to study issues, and constituents to represent.

"There's no doubt about it. The basic place, at least in my mind, where these major questions have to be answered is in Parliament."

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