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The Myth of Canadian Judicial Tyranny

  While the more centrist federal Liberals may not have been ideologically inclined to approve of what the more neo-conservative ruling British Columbian Liberal Party has been doing economically and socially in this province, the ascension of Paul Martin to prime minister may drag the federal party more in line with its provincial counterparts. [1] Conceivably, with a federal Liberal government being at least as far right fiscally as the Tories or Alliance, there may be little federal opposition to neo-conservative legislation and policy. Just like in BC now, there may be little recourse for Canadians opposed to this philosophy to seek constitutional justice except through the courts. The Canadian Supreme Court’s judicial review mandate on adjudicating federal-provincial jurisdictions and upholding Charter of Rights and Freedoms protections [2] may offset the tyranny inherent in a fused executive and legislature, rather than create a judicial tyranny Godzilla [3] that John Crosbie feared.

  Since the 1982 Charter the Supreme Court has a broader mandate to be active in the legislative life of Canada. In its capacity to strike down legislation that violates the Charter, [4] the Supreme Court could alter the legislative agenda of provincial, and potentially in the future, federal legislation that furthers a neo-conservative agenda while violating citizen rights. And while parliamentary supremacy is a noble ideology, its practice in Canada is delegitimized by undemocratic structures: unrepresentative electoral processes (first-past-the-post) and the prime minister’s control of the executive and legislature. With less executive tyranny through more representative elections and the removal of party discipline, there may be more argument for countering the increased power of the Supreme Court since 1982.

  While the British unitary system leaves no role for the courts to determine jurisdiction between federal and non-existent provincial/state levels, the Canadian Supreme Court has a stronger privilege to do so since 1982. If a newly fiscally-right federal Liberal government enacts neo-conservative legislation that violates provincial jurisdictions (like allowing for corporations to deliver public education to harmonize Canadian legislation with global trade treaties), even though a province like BC might support that federal move, other provinces could appeal the move to the Supreme Court. The Court would then determine the constitutionality of such legislation. Similarly, like the US judiciary has broad range of judicial review to maintain a meaningful check and balance system in its government, since 1982 our Supreme Court can more effectively defend against legislation that may violate unions’ Charter association rights.

  And while many may still agree with Crosbie’s views of the role of the Court in judicial review (especially with its recent history of sitting less often as a whole [5]), a year-long Court deliberation of an opinion on same-sex legislation may allow the country to take the time to develop a national consensus on the issue before the Court delivers an opinion that is as acceptable as their opinion on Chretien’s Clarity Bill on Quebec separation was. [6] If the Court forms its opinion as a whole, instead of as a smaller panel (due to the significance of the issue), it will avoid criticisms that individual personalities may be factor in the opinion, [7] thereby improving the Court’s credibility, stimulating more meaningful debate, and fostering more democracy in our society: far from tyrannizing us all.


[1]  See left-leaning Bill Tieleman’s discussion of the links between the neo-conservative elements of the federal and BC Liberal parties in “Local ‘Liberals’ Priming BC for Martinizing,” Georgia Straight, October 2, 2003, p. 18.
[2]  See P.J. Smith, Law, Politics, and the Administration of Justice: Canadian Cases, Comparative Perspectives, (Vancouver: Pacific Policy Sciences, Inc., 1999), p. 140, 142.
[3]  See Smith, p. 146.
[4]  Some BC public sector unions are mounting a legal challenge to Bill 29 before the Supreme Court because it may violate unions’ Charter rights: John Bermingham, “Health unions: Services will be ‘devastated,’” The Province, January 27, 2002, p. A.10.
[5]  See Smith, p. 138.
[6]  See the editorial “Long debate best plan for same-sex law,” Edmonton Journal, September 20, 2003, p. A.18.
[7]  See Andy Heard, “The Charter in the Supreme Court of Canada: The importance of which judges hear an appeal,” Canadian Journal of Political Science, 24(2), p. 304.

Stephen Buckley
Copyright 2003

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