(This
column was published in the North
Shore News on
Aug. 5, 1998)
Time to rein
in Supreme Court judges
By Leo Knight
ONE
of the more interesting ideas to come from the recent meeting of
Western premiers in Yellowknife originated with Alberta premier
Ralph Klein.
Klein,
the Conservative leader, suggested it was time for the
provincial leaders to consider the issue of "judicial
activism." He was reacting to comments made by Reform
leader Preston Manning, who said the Supreme Court of Canada has
changed the nature of its mandate, that the judges of the
Supreme Court are going from being arbiters of the law to
architects of legislation.
There
is no doubt that Klein is miffed by a recent Supreme Court
decision which essentially told the government of Alberta to
rewrite its laws relative to the rights of homosexuals. The
robed wise men said it didn't matter what the people of Alberta
wanted.
The
case was about a teacher in a Christian fundamentalist college
in Alberta, who was fired from his position after he declared
himself to be a homosexual. Approximately a year later, the
board of the college formulated a position based on their
fundamental principles, forbidding a "practising"
homosexual from being engaged as a teacher in a position to
influence their students. Don't forget this is a private
institution whose students choose to attend and pay princely
sums of money for the privilege.
Delwin
Vriend, the teacher, was subsequently terminated from his
position. He took his case to the Alberta Human Rights Board and
his case was rejected because "sexual orientation" is
not specifically outlined in the respective legislation, the
Individuals Rights Protection Amendment Act.
When
the matter was picked up by a host of gay rights groups -- and
we are talking about a plethora of special interest groups who
were, incidentally, given status in front of the courts -- the
lengthy legal battle began. Through the various courts in
Alberta up to the Supreme Court of Canada, the matter went, with
varying results on the way.
The
essential question became, not of Vriend's job and his
employer's right to terminate, but one of a bigger fight between
the gay groups and the legislature's right to enact the laws of
its choosing.
The
argument became about fundamental democracy. Democracy
ultimately lost.
When
the case got to the Supreme Court of Canada, the nine anointed
ones reviewed the case at length. The decision they produced,
all 66 pages of it, is at the heart of Klein's suggestion to his
fellow premiers.
The
case was heard in early November 1997. Unfortunately, Mr.
Justice Sopinka died a few weeks later and was replaced by Mr.
Justice Bastarache. It is interesting to note that Bastarache
was part of the majority opinion in the case even though he
didn't hear the arguments. Evidently he is so wise he can make
his mind up without actually hearing the case.
But
that in itself is part of what has so rankled Klein. It's the
arrogance demonstrated by the court in its decision. But not
just this decision. Every time they open their collective mouths
it seems society takes another kick in the pants.
Klein
believes it is the right of the respective legislators, put in
place by the electorate, who can be removed by the same
electorate, that have the right to enact the laws the citizenry
must abide by. Something called democracy, apparently.
The
Supreme Court decided it is above all that nonsense. Although
they are appointed by those lowly, despicable politicians, it is
not evident to them that they must be responsible.
Witness
some of the statements issued by the court in the Vriend
decision.
Mr.
Justice Major, in his dissenting opinion wrote, "As an
alternative, given it may be that it would choose to override
the Charter breach by invoking the notwithstanding clause in
section 33 of the Charter, the legislature's shown a persistent
refusal to protect against discrimination on the basis of sexual
orientation. In any event it should lie with the elected
legislature to determine this issue."
The
dissenting opinion concluded, saying, in the end it is they who
would be responsible to the voter.
But
this apparent logic was not adhered to by the rest of the court.
The
majority decision said, (referring to the decision of a lower
court) "When unelected judges choose to legislate,
parliamentary checks, balances and conventions are simply
shelved," said McLung, J in the lower court decision.
Continued
the wise men, "with respect, I do not agree. When a court
remedies an unconstitutional statute by reading in provisions,
no doubt this constrains the legislative process and therefore
should not be done needlessly, but only after considered
examination.
"However,
in my view, the parliamentary safeguards remain. Governments are
free to modify the amended legislation by passing exceptions and
defences which they feel can be justified under section 1 of the
Charter. Thus, when a court reads in, this is not the end of the
legislative process because the legislature can pass new
legislation in response. Moreover, the legislators can always
turn to section 33 of the Charter, the override provision, which
in my view is the ultimate parliamentary safeguard."
In
other words, "it doesn't matter what the legislators want,
as long as we think about it long enough, we can override them.
If they don't like it, let them invoke the notwithstanding
clause -- if they dare."
The
arrogance of the decision is stunning. But then these are the
same people who brought you the "drunkenness is a defence
to rape" decision.
Klein
is bang-on with this issue. It is yet to be seen if he gains any
support from the other premiers and indeed, what can be done
about it. The traditional role of the Supreme Court is to
interpret and apply the law as it exists, not to decree what the
laws should say. God knows it has done enough damage to this
country by applying its often illogical analysis to the
interpretation of the laws.
For the sake of democracy, let's hope Ralph Klein finds some support.
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