Stop whining about activist courts

In the wake of recent Supreme Court rulings on the right to strike and assisted suicide, some political commentators have lamented our "activist" courts and their willingness to override elected officials.

In the wake of recent Supreme Court rulings on the right to strike and assisted suicide, some political commentators have lamented our “activist” courts and their willingness to override elected officials – and by extension the democratic wishes of the public.

The debate over where we should draw that all important line between individual rights and democratic will is an old one. Draw it too far on one side and the courts will usurp the ability of legislators to make policy. Place it too far on the other and a “tyrannical majority” will run roughshod over the rights of individuals.

In the Canadian Charter of Rights and Freedoms that line is unquestionably drawn in favour of legislatures. Our legislators simply prefer to pretend that it isn’t.

In the United States, decisions by its high court more or less end the discussion on constitutional issues. But Canada is not the United States. Unlike the American Bill of Rights, our Charter of Rights contains the highly contentious and seldom used notwithstanding clause.

For those who are not familiar with it, the so-called “notwithstanding clause” essentially allows Parliament or a provincial or territorial legislature to tell the courts “thanks but no thanks” if the court finds that a law violates free speech, or equality, or due process. In short, if the notwithstanding clause is used it doesn’t matter that a law violates the Charter.

There are a few exceptions to the notwithstanding clause. It doesn’t apply to certain rights. Voting rights is one of them, so there is little that Parliamentarians could do about a ruling a few years back giving prisoners the right to vote. Same goes for aboriginal rights, French language schools, and the right of Canadian citizens to stay in or return to Canada.

But there are many areas where our legislators can easily overrule the courts. The recent decisions on the right to strike and assisted suicide are two such cases.

The Supreme Court of Canada decided that the law against assisted suicide offends the right to liberty and security of the person? Too bad. Parliament can decide that the “sanctity of life” is more important, invoke the notwithstanding clause and keep assisted suicide illegal.

If Saskatchewan wants to legislate essential public sector workers back to work, it only needs to insert a few key words in its laws and it has the power to do so.

But the practical reality is that the notwithstanding clause rarely gets used. At least not yet.

In fact, in the 33 years that we’ve had the Charter of Rights, Ottawa has never once used it. Several provinces including Saskatchewan, Alberta and even our own legislature here in the Yukon have inserted it into laws, but for a variety of complicated reasons never needed to rely on it.

Quebec is the only province that has actually used the notwithstanding clause. It did so to protect its French only sign laws – which would otherwise violate free speech – between 1988 and 1993. Quebec later changed its laws to bring them into compliance with the Charter so, at the moment, no one is using the notwithstanding clause in Canada.

So despite all the bellyaching we hear about the court’s decisions this clause – which allows politicians to get around them – has really only be used once. On issue after issue – whether it is abortion, same sex rights, or sentencing laws – politicians whine and moan but ultimately recoil from using a simple tool that is available to them.

The problem for politicians is that using the notwithstanding clause is seen as trampling on “rights.” No one wants to be known for doing that.

But this is not the court’s problem. The fact is that the clause is there. If our politicians are so convinced that the public is on their side and that we as voters are sick and tired of “judicial activism,” the political will should not be that hard to find.

Yet on the assisted suicide file, Justice Minister Peter MacKay has already more or less taken the notwithstanding clause off the table – no doubt because the public is actually on the court’s side on this issue. Opponents of the decision, including some within the Conservative caucus, are lobbying for its use, but so far the government has not agreed to use it.

Saskatchewan Premier Brad Wall, on the other hand, has mused that he may use it to legislate workers his government deems essential back to work, but time will tell if he ever follows through on that threat. He will be the first to do so in a long time if he does.

Agree with their decisions or not, the courts were given a broadly worded Charter to interpret, with such general pronouncements as everyone has a right to “freedom of expression” and to “life, liberty and the security of the person.” And interpret it does.

What politicians do after that is up to them. The court cannot be blamed when politicians refuse to use the tools that are available to them, and the political consequences of using those tools are not the courts concern.

So stop whining. If you don’t like assisted suicide or the “right” to strike, use the tools that are available to you. If you choose not to you only have yourself to blame. Don’t carry on as if you are forced to live under some sort of judicial dictatorship.

Kyle Carruthers is a born and raised Yukoner who lives and practises law in Whitehorse.

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