Georgia Straight
for May 1995, Article 4

Much fuss has been made of late about Supreme Court of Canada decisions involving separated spouses and homosexual couples, and while much of the debate has been vigorous and illuminating, I am surprised that the major point has been missed.

The Court is, we are told, voting along sexual lines and, presumably, conservative/liberal lines on social issues. No one seems to be asking why?

Why don't judges simply decide what the law is, irrespective of their own private beliefs? Isn't that what judging is all about?

Well, leaving aside for the moment that it would be quite the judge who left all personal considerations out of judgments, in theory at least the question is an apt one. For judges are not supposed to be political in any sense of that word. They are supposed to coldly and emotionally tell us what the law is. Period. If there is to be politics applied, that's what Parliament is for.

With one exception (about which more in a moment) that's what the Supreme Court of Canada used to be all about. Now it is a political chamber composed of men and women, unelected and virtually unfireable, who create and administer social policy, once the exclusive preserve of Parliaments.

This all came about right in front of our eyes and we the people let it happen. And it's called the Charter of Rights and Freedoms which, thanks to Pierre Trudeau, transferred Canada's social conscience from the House of Commons and Provincial legislatures to nine men and women on Wellington Street in Ottawa.

We were hoodwinked by the chattering classes and pointyheads who convinced us that somehow we had no rights in this country and that we needed a constitutionally locked in Bill of Rights to ensure that Parliament behaved with sensitivity to rights and obligations in fast changing times. In

short, we were handed a load of crap which said that appointed, well-to-do lawyers were better able to decide social policy than was Parliament. And now we are reaping the whirlwind.

I was there, back in the runup to the patriation of our Constitution, when this was all debated. I watched such disparate political souls as Tory Sterling Lyon of Manitoba and Socialist Allan Blakeney of Saskatchewan vainly argue that they would rather trust their rights to a member of Parliament than an established, aging lawyer who had gone to his final earthly reward. Bill Bennett of B.C. lent his voice to the argument that this was a very bad thing to do, but Trudeau, as was his wont, trivialized the issue with the question, "don't you want rights?"

In the days before the Charter, Supreme Court Judges did break down along "party" lines on one issue - the constitution. When appeals to the Privy Council were abolished in 1949 part of the reason was national pride but the other, and substantial part, was that their Lordships in England usually gave the Provinces the better of arguments with Ottawa. From the day appeals to the Privy Council ended, Prime Ministers began appointing judges which tended to favour Ottawa the most notorious being Bora Laskin.

Now this all raises a pretty serious question. Assuming, lamentably, that we can't do anything about the Charter of Rights and the powers it devolves upon the unelected but elevated, shouldn't we the people have something to say about who gets onto the Supreme Court bench? Should this be left to the Prime Minister of Canada?

Clearly, it is has been essentially wrong for the political leader of the national government to select who should decide disputes between that  national government and the provinces. One would think that proposition so elementary as to be beyond debate. Yet, since 1949 we have permitted the Prime Minister to load the court in his favour if he wishes. (That Prime Ministers may not always have done so is beside the point.)

Now that Rights - including those of homosexuals, women, invalids, minorities (indeed, I suppose, majorities) are to be determined not by the people we send to various capitals to run our affairs but by select lawyers, surely we should demand some say in their appointment.

In the United States, where we got this Charter notion from in the first place, Supreme Court Judges can only be appointed with consent of the Senate (which, you will remember, is an elected body representing all the states equally). This has produced, when the appointment is before the Senate Judiciary Committee, some moments of high drama and some pretty brutal airings of the private lives of candidates. The system has been much criticized by Canadians for that openness.

But what's the matter with lawyers getting grilled about what they believe before they get into the position of incorporating those beliefs into social policy? And wouldn't Canadians investigating candidates probably behave differently than their American counterparts?

Whatever the answer to those questions, in Canada we have created a body every bit as powerful as the Supreme Court of the United States and we permit the Prime minister of the day to say who gets the job - a job which usually continues well past the political life of the Prime Minister in question.

Don't you think, folks, that we should start to think about this question?

Or shall we just relax in that traditional Canadian political torpor which prefers established injustice to the making of any uncomfortable waves?