The Supreme Court on Trial

• Author: Kent Roach
• Pages: 3-14

Chapter

1

The

Supreme

Court

on

Trial

3

In

many high-profile cases

the

Supreme Court

of

Canada

has

found

new

rights

for

unpopular individuals

and

minorities

in the

1982

Canadian

Charter

of

Rights

and

Freedoms

and has

placed

new

obligations

and

restraints

on

governments:

it has

struck down abortion laws, extended

gay

rights, recognized Aboriginal rights, given tobacco companies

the

right

to

advertise,

and

required

the

police

to

obtain warrants

before

they

conduct searches. These cases make good news because they produce

clear winners

and

losers.

On

decision

day the

nine unelected judges

on

the

Supreme Court have

the

last word.

The

Court's

new

power

and

prominence

has led to new

levels

of

criticism. Governments have

found

themselves

on

trial

before

the

Court,

but the

Court itself

has

been placed

on

trial

by

politicians

and the

media. Canada's

two

national newspapers

and Her

Majesty's

Loyal

Opposition,

first the

Reform

Party

and now the

Canadian Alliance, have

loudly

complained that

the

Court

has

engaged

in

"judicial activism"

by

inventing rights

for

minorities

and

criminals

and by

imposing them

on

the

majority

of

Canadians. Recent debates have been driven

by

neo-con-

servative

or

right-of-centre concerns that

the

Court

is too

solicitous

of

the rights of

criminals, Aboriginal people,

and

minorities. Previous

debates, however, have

featured

arguments

from

the

left

that

the

Court

has

been

too

generous

in

protecting

the

rights

of

corporations

and

other

powerful

interests.

The

Supreme Court

is on

trial.

Vic

Toews,

the

former

attorney

general

of

Manitoba

and the

Canadian Alliance's Justice critic, told

Parliament

in the

spring

of

2001 that

the

Court

has

"engaged

in a

frenzy

of

constitutional experimentation that resulted

in the

judiciary substi-

tuting

its

legal

and

societal preferences

for

those made

by the

elected

representatives

of the

people," producing "legal

and

constitutional anar-

chy."1

John Crosbie,

the

former

Conservative minister

of

justice,

has

accused

the

judges

of

using

the

Charter

"to

elevate themselves above

the

two

other branches

of

government,"

so

that parliamentary supremacy

has

been

replaced

by

judicial

supremacy.2

Other concerns about

the

Court

have been raised

in a

less

extravagant manner. Allan Blakeney,

the

former

social democratic premier

of

Saskatchewan,

and

Peter

Lougheed,

the

former

Conservative premier

of

Alberta, have joined

together

to

express concerns about

the

growth

of

judicial power

in the