May 2000 Fraser Forum: The Supreme Court's Supremacy
Giving up on governance can lead to dangerous results. A recent public opinion poll asked if people thought that power should shift from politicians to judges, or the other way around. A small majority would give more power to the judges. This should lead to careful thought, because of course we do not choose judges directly by election, and once chosen (by fiat of the Prime Minister, effectively) they are accountable to no one.
One interpretation of the polling data is that we have grown so cynical and distrustful of politicians that even non-elected judges look better to us. It is educational to study a case example of what happens when judges do, in fact, have the supreme law-making power. Most people do not realize that, since the constitutional amendments of 1982, that is the reality in Canada with respect to aboriginal law.
Section 35 of the constitution entrenches and protects "existing aboriginal rights" as of 1982. It sounds vaguely noble, but of little import. Nevertheless, it has led to the most extraordinary and pernicious unintended consequences. A little history is interesting.
I had a conversation recently with a senior provincial official who was intimately involved in the very lengthy and detailed legal negotiations leading to the constitutional amendments of 1982. He told me unequivocally that the main amendment relating to aboriginals - Section 35 - was an afterthought in response to pressure, on which virtually no work was done. Section 35 was thought to be and intended to be purely cosmetic, a meaningless, empty vessel.
It has turned out to be easily the most influential of the 1982 changes. In the Charter (the usual name for Sections 1 to 34 of the amendments), the courts are guided by carefully considered language about various rights and freedoms, subject always to the check and balance of Section 1 ("such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society") and the "notwithstanding clause" (Section 33) permitting legislative over-ride of judicial adventurism.
Section 35 is subject to no such check. The word of the court is definitive and final, except for the theoretical possibility of a contrary constitutional amendment to overturn any given court pronouncement. This of course is a practical impossibility aside from near revolutionary circumstances.
The result in the aboriginal area has been an unacceptable pattern of prescriptive and binding essay writing in pursuit of the ideal society - something for which judges are not fit.
It is a reality of human nature that if power is conferred it will usually be used. The Lamer court used Section 35 with truly reckless abandon, plucking concepts out of academic textbooks of a particular cast or even seemingly from thin air, in order to build up a new and free-standing doctrine of aboriginal law, but little informed by other precedent or by reality. Indeed, if one examines recent decisions of importance, one will find almost every precedent cited comes from some earlier decision of the Lamer court itself.
In the famous Delgamuukw decision, the court invented a previously unknown sort of aboriginal title and went on to insist that this new title was held collectively, not privately. Thus was another legal burden heaped on the people who have suffered so long under the collectivist Indian Act (that abomination not, to be fair, invented by the Court).
Quite apart from the intensely adverse economic consequences of the uncertainty caused by the ruling, the destructive impact on the BC Treaty Commission process was immediate and devastating. That useful initiative is now paralyzed. It is not yet clear whether the process will ever recover from this court-designed meddling without some sort of catharsis of legal or even direct action with possible violence bringing the parties into deeper conflict.
The penultimate aboriginal decision of the Lamer court - the infamous Marshall case which overnight destabilized the Atlantic fishery - was an even more egregious example of the majority deciding in advance on the result sought and then inventing history and meaning to give some colour of legitimacy to a truly irresponsible judgement.
Significantly, Justice Beverley McLachlin wrote a strong and closely reasoned dissent. When the Court was petitioned a couple of months later by one of the Intervenors for a review of the decision in the light of the huge turmoil the decision had caused, it did a 180 degree turn. Pretending merely to clarify its ruling, the Court in effect swallowed itself whole in what amounts to "Marshall II," and undid much of the earlier damage.
Now that McLachlin is Chief Justice, the court may rethink its aboriginal policy. For example, it may have the fortitude to "do a Marshall II" in Delgamuukw when that matter is revisited, as it surely will be. But the point is this: the Court doesn't have to change any decision of aboriginal law it makes, no matter how foolish or pernicious the result. And apart from amending the constitution, there is nothing Parliament or the legislatures can do about that. (For a further disturbing thought, the Court could and might rule that even any constitutional amendment touching Section 35 could only be done with the consent of aboriginals as well.) Not merely in theory but in practice the system is a mess.
In retrospect, this should have been obvious. The framers of 1982 would never, ever have simply written as to general rights and freedoms of the Charter that they consisted of "such human rights as existed" in 1982, and left the interpretation of that Delphic phrase entirely to the courts. Yet that is exactly what they did with aboriginal law, and we are living with the results.
For those uncomfortable with such judicial ascendency in a policy matter which is far better handled through the ordinary political process, three solutions present themselves.
The first and simplest is repeal of Section 35. Section 35 is unnecessary. Even the Delgamuukw rights found by the court do not rely on S.35, but flow rather from the Court's interpretation of common law. What S.35 does, however, is render Parliament helpless to change or moderate the decision.
The existence of S.35 means that novel and questionable forms of "Third Order" aboriginal government set up by such instruments as the Nisga'a Treaty will be cast in concrete, unchangeable by Parliament, however negative their ultimate effect may be on aboriginal people not lucky enough to be a part of the elite who control virtually all of the aboriginal cash and property.
For those who would find the simple elimination of a section of the constitution dealing with race-based rights too direct an approach, another option would be the extension of the "notwithstanding" clause to cover S.35, as it does most of the great principles of the Charter. History has shown that "notwithstanding" is very rarely invoked, but it stands as a useful safety valve and an antidote for judicial hubris.
The fall-back position is to hope that the Court itself will exercise moderation. It has immense discretion in its findings, and can reverse itself if necessary. But it is still not right that judges should be making law. However impatient we become with our politicians, we can at least change them.
Of course the courts have a role and an essential and important one in the protection of our liberties. They can and do act as a check on the petty or major tyrant who would subvert the rule of law.
In the same way, the constitution - which is supreme as our statement of basic law - is properly interpreted by judges.
But ongoing governance and especially proactive governance (as opposed to restraining governance, another court-suited activity) is for elected politicians or direct democracy. We cannot just punt to the judges. We have to get the messy politics right.
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