Rescuing Democracy From the Tyranny of Unelected Judges

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By Norman Spector

"In a year-end interview, Prime Minister Paul Martin said his government would use the notwithstanding clause to override the Supreme Court of Canada if it rules that churches, synagogues and mosques must perform same-sex marriages.

Whatever you think about whether gays and lesbians should have the right to marry, he should be congratulated for staking out a potentially unpopular position that will go a long way toward rescuing our democracy from the tyranny of unelected and unaccountable judges.

Judges bridle at criticism, but they have not always been deferential to Parliament, as they were last week in upholding the constitutionality of the marijuana laws. In 1999, shortly before the Supreme Court struck down an Ontario law that extended spousal benefits to common-law relationships - but only to heterosexual ones -

Mr. Justice Frank Iacobucci, in defending his colleagues, described our legal system as a "continuing dialogue" between Parliament and the judiciary. Then, with the courts under attack for this and several other controversial decisions, retiring Supreme Court Chief Justice Antonio Lamer noted that legislators can override the court by using the notwithstanding clause of the Canadian Charter of Rights and Freedoms, which ensures "that the elected have the last word, when they want to have it."

In truth, in the 20 years since the Charter has been in effect, there'sbeen no "dialogue" between Parliament and the courts - on same-sex rights or any other issue. None was conceivable, as long as Parliament refused to consider using the notwithstanding clause to override the Supreme Court.

While former prime minister Pierre Trudeau's acolytes insist he objected fiercely to this clause during the 1981 constitutional discussions, my recollection is that, for him, only language rights were sacrosanct; moreover, his only condition for agreeing to it was that legislatures be required to reaffirm their override of rights every five years. And, though premiers only insisted on provinces having the power as the price of an agreement, Trudeau gladly accepted it for Parliament as well.

Notwithstanding his reputation as a great civil libertarian, he had used a similar override provision in John Diefenbaker's Bill of Rights - the predecessor to the Charter - to suspend civil liberties during the 1970 October Crisis in Quebec. Moreover, in a confidential letter dated Dec. 21, 1981, to Toronto cardinal Gerald Emmett Carter, Trudeau wrote:

"Should a court decide at some future date that Sections 7 (the right of women to security of the person) or 15 (equality rights) establish a right to abortion on demand, Parliament will continue to legislate on the matter by overriding the court's decision and the specific Charter right."

Having as justice minister in 1981 persuaded Trudeau to accept the provinces' notwithstanding clause during Constitutional negotiations, Jean Chretien was ideally positioned to rescue that clause from the opprobrium - and mythology - that surround it. Running for the Liberal leadership in 1989, he broke with party policy in stating, "There are some situations where it is absolutely needed." He clashed with one of his opponents, Clifford Lincoln, who had resigned from the Quebec National Assembly after premier Robert Bourassa used the clause to shield French-only language legislation. Once or twice, Chretien even proudly claimed paternity of the notwithstanding clause, in a bid to keep Bourassa neutral in the leadership race.

When prime minister Brian Mulroney attacked the clause that year, implying that the Constitution should not have been signed with it included, he correctly pointed out that it was the price of obtaining the Charter.

As Liberal party leader in 1992, Chretien defied youth convention delegates who wanted to abolish the clause. "It's not as bad as you think.... Without it, you leave all the decisions in the hands of the court. If you have a good court, no problem. But the Supreme Court can make errors. They are judges. They are appointed. It's not a perfect system."

As prime minister, however, Chretien acquired the power to appoint Supreme Court justices - six of nine in total. He became a fierce foe of the notwithstanding clause, and has left it to his successor to take on one of the great sacred cows of Canadian politics.

Now, Martin must explain frankly to Canadians that, though the Trudeau/Chretien Charter guarantees our rights, they drafted section 1 to make clear that none of these rights is absolute. And that they wrote the notwithstanding clause directly into their Charter - as section 33 - for a reason. Let the dialogue begin."

Christian Coalition International (Canada) Inc.
P.O. Box 6013, Station A
Toronto, Ontario
Canada M5W 1P4
Phone nr. 1-905-824-6526

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