Where Do We Draw the Line?

Article excerpt

CANADIAN COURTS' ROLE IN PUBLIC POLICY HAS NEVER BEEN GREATER. IN THE last year, in constitutional cases alone, the Supreme Court has ruled on Employment Insurance benefits for parental and maternity leave, deportation of immigrants convicted of serious criminal offences, the ability of juries to use silence as evidence of guilt, provincial tobacco litigation statutes, remuneration for provincial court judges. Aboriginal logging rights and the right to participate in provincial resource decisions, pension rights for common-law spouses, media access to search warrants, roadside screening tests, the French-language education provisions of the Charter of Rights and Freedoms, whether government should fund certain treatments for autism, the legality of private health insurance, and the colour of margarine.

In the same year, a same-sex marriage bill, action on which was supposedly required by the courts, and a bill on judicial compensation, which was in fact required by the courts, occupied the legislative agenda of Prime Minister Paul Martin's minority government. And arguably the most important decisions of Martins first elected term will not be legislation, tax cuts or social programs, but his appointment of Justices Louise Charron and Rosalie Abella, and his likely appointment of a replacement for Justice John Major, who steps down in December 2005.

This rise in the power of the judiciary is a byproduct of decisions made a generation ago. In April 1982, Canada's fundamental legal framework jumped the Atlantic. Canada's first ministers, with the notable exception of Quebec's René Lévesque, had agreed to a constitutional package that included a Charter of Rights and Freedoms. The British tradition of parliamentary sovereignty, constrained by political and conventional understandings, was abandoned for a list of enumerated rights embedded in an American-style written constitution.

In the United States, the Constitution was 14 years old before the Supreme Court, under Chief Justice John Marshall, relied on it to overrule the elected government and Congress. Marbury1 was an ingeniously worded decision, but one thoroughly mired in the politics of the day. What Marbury established in 1803 was that the Court, and not Congress or the administration, would decide whether legislation and the manner in which it was implemented was consistent with its understanding of the Constitution and therefore legitimate.2

Many of the major developments of subsequent American history involved institutional struggles between the courts and elected politicians. In Dred Scott,3 Chief Justice Roger Taney wrote that "being a Negro of African descent," Scott could not be a citizen and that Congress could not prohibit slavery in U.S. territories. The decision helped fan the flames that that brought on the Civil War, and the eventual defeat of the South made the Fourteenth Amendment possible, allowing the federal judiciary to strike down state laws that violated the equal protection and due process clauses of the Bill of Rights.

The Fourteenth Amendment did not prevent the rise of Jim Crow.4 However, federal restraint on state action did grow, notably through Lochner5 and subsequent Court decisions. These decisions brought on a Progressive attack on the principle of judicial review, which culminated in Franklin D. Roosevelt's 1937 attempt to stack the Court to protect New Deal legislation.6 A generation later, a liberal Court used judicial review for other purposes, barring school segregation,7 extending voting rights,8 revolutionizing criminal procedure and pushing the boundaries of free speech in ways not contemplated elsewhere before or since. The liberal high water mark was reached with the Furman and Roe cases in the early 1970s,9 which struck down all state death penalty and abortion statutes respectively.

But just as the Lochner line of cases generated a Progressive reaction, the Furman and Roe decisions in particular spurred a conservative counlermovement. …