WHO IS RUNNING THE COUNTRY:

THE COURTS OR THE GOVERNMENT?

by Gwen Landolt

The decision of the Supreme Court of Canada on the Vancouver drug injection site, known as Insite, has established troubling precedents by which the court has maximized its power, and conversely, diminished the power of Parliament.

In effect, the Supreme Court of Canada in the Insite case, has thrown down the gauntlet, and announced that it, rather than the government, will in future direct the nation’s affairs.

The fall-out, by way of the precedents established in this decision, will affect future government policies and legislation, including the federal government’s crime bill with its provisions for mandatory sentences, and other critical issues such as prostitution, assisted suicide and polygamy, which are now before the provincial courts.

In short, the Court on the basis of precedents set in the Insite decision will weigh legislation and policies, not necessarily on law, but rather on the judges own perspective according to their qualitative judgment on liberty (criminal law), life and death (assisted suicide), health and quality of life (social conditions) of Canadians.

These troubling precedents include the following:

The Supreme Court substituted its own opinion for that of the Minister who had been given Ministerial discretion to make the decision on Insite. The Court did so, even though the Court acknowledged “there is room for disagreement between reasonable people……” on this matter.

The Court failed to apply any restraint or deference to Parliament in regard to legislation that had been passed only after extensive and careful debate and deliberation.

The Court broadly extended its reach to change the interpretation of the meaning of “rights” as understood across liberal legal systems, by extending its jurisdiction to include social and economic conditions that have heretofore been the responsibility of Parliament. In the Insite case however, the court provided Charter protection for the social condition of drug addiction. This sets a precedent for future court decisions to provide Charter protection for other social and economic conditions, e.g. homelessness, poverty, unemployment, etc. thereby tying the hands of future governments to make decisions on these matters.

Why has the Supreme Court Increased its Reach?

The Supreme Court of Canada has increased its authority simply because it can. Who is to stop it? As the final court in the country, there is no way its decisions can be appealed. It is accountable to no one.

A Political Solution

There is, however, a political way to curb the court’s power, and this is the notwithstanding clause (S. 33) of the Charter which is the simplest solution to curb judicial activism. Section 33 of the Charter provides that the federal or provincial legislatures may pass legislation overriding the Supreme Court’s decisions. After a few instances of overturning its decisions, the Supreme Court of Canada may, hopefully, cease to be quite so aggressive in overturning the will of Parliament.

Certainly S. 33 is a valid and operational provision of the Charter. Governments have been reluctant to apply it because they fear that it may de-legitimatize the courts, and the denial of new “rights” granted by the court by way of the governments invoking of the notwithstanding clause, could result in political backlash for that government.

It is a fact, however, that when the Charter was debated in 1981/1982, most of the provincial premiers were initially reluctant to adopt the Charter, fearing, quite correctly, as it turns out, that it could lead to the all-powerful Supreme Court making legislative decisions.

Because of this concern, the notwithstanding clause (S. 33) was added to the Charter to calm their fears. In retrospect; it was a wise decision to include (S.33) in the Charter as the concerns of the provincial premiers have now become a reality.

The time has come to implement this section of the Charter. The application of the notwithstanding clause in the Insite case may serve as a ‘shot across the bow” to the Court and be helpful in preventing judicial activism in regard to the looming issues of prostitution, assisted suicide, etc.