Supreme injustice?

The Supreme Court's ability to strike down legislation should be seen as our protection against bad policy-making

By: Richard Shillington

  The Supreme Court is under increasing scrutiny. The national press refers to it as 'unaccountable' and 'activist'. Some complain that it is making decisions that should be made by Parliament. Others believe its only valid function is to point out problems, rather than prescribing remedies.
  With all of those arguments, the real target is not the Supreme Court itself, but the Charter of Rights and Freedoms, which the court upholds. The Charter limits Parliament (and the provincial legislatures) by requiring that the laws they pass must adhere to certain standards: equal treatment, the right to hearings, the security of the person.
 

If governments pass laws that trample on its citizens' fundamental rights, the Charter says the Supreme Court can overturn those laws

  The point of all this is to ensure that the heinous human rights abuses that stain Canadian history - Japanese internment, denying women the right to vote, the destruction of First Nations culture and society - will never be repeated. If governments pass laws that trample on its citizens' fundamental rights, the Charter says the Supreme Court can overturn those laws.
  Critics of the 'activist' court reject this logic. They argue that Canadian society has moved beyond past outrages, that our legislators are sensitive enough to rights issues that they don't need the Supreme Court looking over their shoulders.
  Oh yeah?
  Take a look at Ralph Klein's legislation - proposed for all of one day - which would have limited the right of sterilized citizens (whose sterilization had been ordered by the provincial government) to sue the province for compensation.
  Then you've got Ontario's 'squeegy-kid' law. Because some voters feel threatened by Goths, Ontario trumped up an argument about road safety as a way to have them banned. The province's real motivation became clear when another proposal was introduced that would allow firemen and university students to do what 'squeegy-kids' can't - to block streets for their collections. So its obvious the real point of the legislation is to discourage 'counter-culture' dress on street corners.
 

Think of democracy as a process for dividing a cake. If five people agree to make their decision democratically, three of them can form a coalition and decide that it's in the public interest to cut the cake into three equal parts - with the other two people getting nothing. That's democracy.

  Even the wealthy can occasionally feel the pinch of government's ability to legislate contracts. Immediately after the 1993 election, the Liberals cancelled the Pearson Airport privatization deal and, for good measure, passed legislation denying compensation for the forfeited contract. If you can unilaterally change a contract... boy, does that make life easier.
  So there are plenty of examples in the daily news of governments making unfair and morally outrageous decisions that should be subject to the scrutiny of the courts.
  For instance, if the current case before the B.C. courts means that an election won by fraud can be overturned, I think that's a step in the right direction.
  And if Supreme Court rulings nudge Canada into finally accommodating aboriginal rights, so much the better. (By the way, how dare we lecture the world about human rights while we have Davis Inlet and, allegedly, police dropping Indians to freeze on the outskirts of Saskatoon).
  Am I saying the Parliament can't be trusted to look after the collective public interest without trampling on individual rights? Yes.
  After all, democracy is a flawed system that can easily mutate into mob rule. I like the analogy presented in Amartya Sen's book Development as Freedom, in which democracy is likened to process for dividing a cake.
  In Sen's parable, five people agree that the process will be democratic. That done, three of the five form a coalition and decide that the public interest is best advanced by them getting one third each - and denying any to the other two. At their worst, this is the way political parties operate.
  This analogy can be taken a step further. Imagine that the democratic will is determined not by the majority but by the largest minority. In some cases, (think: Canada) a majority government may have the support of only 38 percent of the population. That gives much less than half the population the power to decide how the economic cake is divided.
 

Have legislatures earned an unfenced yard? Not to my mind. I can't forget the Westray mine conspiracy, breast implants, tainted blood, the Marshall, Morin, and Milgaard scandals of injustice and cover-up, and the Somalia inquiry.

  We citizens are like Parliament's parents. We gradually loosen the children's reins as trust is earned. Gradually the crib is replaced by a child-proof room, then a fenced back-yard. Eventually, the child is allowed to go down the street and, when it is ready, to cross the road.
  Have legislatures earned an unfenced yard? Not to my mind. I can't forget the Westray mine conspiracy, breast implants, tainted blood, the Marshall, Morin, and Milgaard scandals of injustice and cover-up, and the Somalia inquiry (notable for official attempts to cover-up murder and for forged documents, and cut short by the government just as the inquiry seemed to be reaching the truth)...
  Keep parliament in a fenced yard? So long as it behaves like a child - yes.
  Do I want a limit on legislatures? - a resounding YES.
  Should we have unfettered legislatures? - absolutely not.
  Before I am accused of overstatement, let me acknowledge that the courts aren't perfect. They are appointed from an occupational pool - lawyers - which hardly represents the broad spectrum of our society. Despite this, dispossessed Canadians are more likely to get a hearing in the courts than in the legislatures.
  Also, recall that Parliament can always over-rule the Supreme Court by using the "notwithstanding clause". This legislative out is looking increasingly ingenious, since it gives Parliament the last word but not the power to entirely undo the Supreme Court's action. The reality is that legislation reinstated through the notwithstanding clause will have the force of law, but will be hampered by its label as an affront to human rights.
  Why are so many conservative voices in Parliament and the national press so offended by an "activist" Supreme Court. Does it have something to do with business interests feeling they can control parliament easier than the courts?
  Well, that a whole other story...

Richard Shillington, Ph.D., is a statistician who specializes in the quantitative analysis of health, social and economic policy. He appears regularly before committees of the House of Commons and the Senate, and frequently provides commentaries for television, radio and newspapers on issues of taxation, human rights and social policy. Richard's Straight Goods column appears weekly.

Get More/Do More
For more information about Human Rights treaties, see the website of the United Nations High Commissioner for Human Rights www.unhchr.ch.

Other articles from Richard Shillington
  Not all international agreements are created equal
  Bafflegab battleground heats up as Harris, Chretien exchange attack ads
  Brilliant spinning places welfare recipients in cottages
  Poor but proud in Pakistan
  Federal policy flip-flops kill politics
  What I learned on my Pakistani vacation
  Budget: something for everyone - with any political clout - and nothing for Canada's poorest families
  Death by the rules
  House Finance Committee gives more windfalls to wealthy; rotten apples to poor kids
  Attn: Paul Martin - a REAL "children's budget", please
  A poor measure of poverty
  Are RRSPs really for you?

[ Front Page ]