A
Court Should Do Its Job
(As
submitted and not published by
the Globe & Mail)
Aug
2010
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I
disagree strongly with
several thrusts of Aidan Johnson’s August
14th 2010 Essay in the Globe
and
Mail that decisions on Constitutional
rights are best not made by
courts. A response to Johnson’s position
is important because it
happens to coincide with positions
repeated in the Globe, in particular
with respect to the Canadian Supreme
Court’s judgment in Singh et al
1985 with which I was involved
peripherally.
The point of having a Constitution with
Charter of Rights is to hold
the majority view and its laws to account
against a higher less
changeable more general law which a
different larger majority has
agreed upon. A court is there precisely to
uphold rights and to
challenge the legitimacy of a more
particular or more local law which
disproportionately restricts a right.
Typically the right will relate
to a minority group like gays or asylum
seekers. In this context
it is
absurd to suggest that a US District Court
in California which did its
job under the US Constitution in Perry
v
Swartzenegger 2010 should have
been expected to do otherwise. This
is part of the political
process
established. It is
preposterous to hold up as a model the
refusal of
the Canadian Supreme Court to do its job
of giving advice about
Constitutionality of proposed law in the
case of Reference
re Same Sex
Marriage 2004. Rather it is
shameful that Canadian courts have
been
reluctant to take their role in the
process seriously. No one questions
the legitimacy of the majority rule
principle and the notion that
parliament makes laws. But minorities
should be able to rely on the
rights promised by the wider majority in
its principled mode. They
should be able to rely on judges to
correctly apply human rights law to
reach a fair decision whatever some
narrower majority or law may
require.
Sad to say, the Canadian Supreme Court has
preferred to defer to
parliament or to avoid doing its job at
all – as in the gay marriage
example. With respect to asylum seekers’
rights, on February 9, 2009
the Supreme Court refused to hear an
appeal by Amnesty International,
the Canadian Council for Refugees and the
Canadian Council of Churches
from a misguided Federal Court of Appeal
judgement on the
Constitutionality of Canada’s law which
allows a government to
designate a Safe Third Country for
refugees. In the case of gay
marriage, there was subsequent
rights-granting legislation. This is not
always the case when the Supreme Court
fails to rule on Constitutional
rights. Avoiding applying the Constitution
to ensure minority rights –
human rights -- is not a good model.
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