Tuesday, February 13, 2007

The Charter at 25

Red tories abound on the pages of the National Post this week. Peter Russell's column in today's paper offers an enlightening take on the role of legislatures -- not courts -- in defending the Charter. Russell's right: the notwithstanding clause -- under which legislatures can insulate certain pieces of legislation from judicial review for five years -- has got a bum rap from Charterphiles like Trudeau, Mulroney, left-wing activists, and right-wing libertarians. But who's to say judges are better at protecting rights than elected representatives?

[As an aside: An Australian colleague once remarked: There are two highly despised groups of people in the world today: lawyers and politicians. Why is it, then, that when politicians get together to select a lawyer, their choice becomes a revered champion of wisdom?]

To quote from Russell's piece,

"To defend the notwithstanding clause is not to oppose the Charter. It was included in the Charter for a very good reason: a belief that there should be a parliamentary check on a fallible judiciary's decisions on the metes and bounds of our fundamental rights and freedoms.

Former premiers like Saskatchewan's Allan Blakeney, Alberta's Peter Lougheed and Manitoba's Sterling Lyon, who insisted on the inclusion of the notwithstanding clause, were no less civil libertarian than Pierre Trudeau. They welcomed the opportunity the Charter gives citizens to test the laws and practices of government against the rights and freedoms in the Charter. While most of the time the country would live with the decisions of judges on the requirements of the Charter, a clause was needed for those exceptional occasions when elected legislators conclude that the way judges have construed a Charter right or freedom is an unreasonable constraint on democratic power or threatens a vital interest of society."

"What is needed is the constitutional wisdom that led to including the notwithstanding clause in the Charter -- sufficient respect for parliamentary democracy not to let the judiciary always have the last word on rights and freedoms. Let us hope that the next generation of political leaders in Canada will eschew the simplistic thinking of Mulroney and Martin and follow the wise statecraft of Blakeney, Lougheed and Lyon."

Hugh Segal's exposition of Charter Myths in yesterday's paper is also worth a read.


Anonymous said...

Stephen Harper's people are right to criticize the overly-activist nature of judicial review in Canada. But their approach toward fixing the problem is no better than the Liberals'. Stacking a court to favor conservative values may offer the neocons revenge for years of leftward drift, but it's not a real Tory solution. The answer lies in getting proactive about debating Charter issues in parliament, or -- at least -- having the guts to publicly consider using the notwithstanding clause. In short, the answer is to put judges in their place, not simply to replace judges.

Anonymous said...

Интересно написано....но многое остается непонятнымb