Vancouver Province
for September 24, 1999

If it were a laughing matter I’d go har-de-har-har! But it’s a matter that's so serious that the Supremacy of Parliament is all but permanently compromised.

In 1982, when Pierre Trudeau "patriated" the Canadian Constitution from Britain to Canada, he demanded that a Charter of Rights and Freedoms be entrenched in the new Constitution so that it could not, realistically, ever be changed. This was a marked departure from our system and practice for it took the protection of rights, individual and collective, away from Parliament (which had its own Bill of Rights) and gave it to an unelected body, the Supreme Court of Canada. This concept was not without it’s opponents, notable Premiers Lyon of Manitoba, a Tory, Allan Blakeney of Saskatchewan, NDP, and Bill Bennett, Socred.

The opponents to the Charter were not, as painted by the proponents, against people getting rights. As Allan Blakeney put it, "when my rights are challenged I want to go to my MP, not my lawyer." What these three premiers foresaw was a gigantic transfer of power from Parliament which, for all its faults, is elected, to a court which was not. What the proponents didn’t dream of, we opponents knew – the Court would interpret their way to supreme power in the country.

Alex Macdonald, a former Attorney-General in B.C. has written an excellent little book called Outrage, Canada’s Justice System On Trial which demonstrates just how by using the Charter the Supreme Court of Canada has drained away so many police powers that the criminal courts have become like Law School Moot Courts where nits and nats count for far more than truth and justice. Macdonald, to his credit, also admitted that when I, as minister responsible for constitutional matters, raised the government’s objections to the Charter he and his fellow NDP MLAs of that day paid no mind. Few others did either.

The Supreme Court which once confined itself to straightening out miscarriages of justice, both criminal and civil, and arbitrating constitutional disputes has now become a glorified department of social work. Let me give but one example. Back in 1956 in a case called Kuruma v. the Queen the Privy Council decided that even if evidence was illegally obtained, if it was otherwise admissible it would be admitted. In this case a suspected Mau Mau terrorist in Kenya was jumped by police officers who found some rounds of ammunition in his trousers, then a capital offence. The gist of their Lordships reasoning was that while Mr Kuruma might well have an action in assault against the police, he was nevertheless caught with the goods. By that time, the United States Courts had gone quite the other route, holding that evidence obtained illegally was a "poisoned tree" calling justice into disrepute, and was thus inadmissible no matter how compelling it was.

Canada had a choice – not bound any more by the Privy Council and certainly not bound by American decisions it could go either way. This Supreme Court, in granting "Charter" rights hither, thither and yon, has rejected illegally obtained evidence even, indeed often, where the only illegality was the policeman’s neglect to give an appropriate warning or to give it quickly enough. We have even reached the stage – I’m not joking – where in Canada drunkenness can be a defence to drunk driving because the accused was too drunk to understand the policeman’s warning!

Fortunately, thanks to the premiers’ stubbornness 1982, the Charter of Rights and Freedoms has a "notwithstanding" clause whereby Parliament and the legislatures can, by specifically saying so, pass legislation "notwithstanding" its provisions. Quebec did this with its language laws but otherwise legislators have been reluctant to face the political heat from the "higher purpose" persons, mostly of the left, who would set their collective hair on fire were such to happen.

Parliament, with huge problems of their own – not least of which is that they’ve given the prime minister unchallengeable power – must now re-assert itself and soon. It can start with the criminal law and so-called "poisoned tree" evidence. Though not strictly a "Charter" case, it is going to have to deal with Delgamuukw before it sends us all into the poor house. For, as predicted, Canada is fast becoming governed by the unelected and unaccountable.

There are lots of times when saying "I told you so" is great fun – this is not one of them.