Philip Slayton is a former law professor and Bay Street lawyer. In 2007, he roiled the legal world with his scorching book, Lawyers Gone Bad: Money, Sex and Madness in Canada’s Legal Profession. Now he is taking on the pinnacle of the legal profession with his new volume, A Mighty Judgment: How the Supreme Court of Canada Runs Your Life.
Q: You write, “The Supreme Court of Canada runs our life.” How so?
A: Since the 1982 Charter, fundamental social, economic, and political decisions have been taken by the Supreme Court of Canada: more than by Parliament or by the cabinet or by the prime minister. The court runs the life of every Canadian by deciding fundamental issues that we care a lot about. For example, in the Morgentaler case of 1988, the court struck down Canada’s abortion law and since that time there has been no abortion law at all. We are the only country in the Western world in which that is true. In the Vriend case, the court overrode the express wishes of the government of Alberta, and decided that provincial human rights legislation protected a gay man. The court has also said, for example, that same-sex marriage is okay, and that Quebec cannot secede unilaterally.
Q: Do you think the judges have overstepped their role?
A: The Charter handed that power to these judges and they are not averse to using it. Have they overstepped? That’s a difficult question. I changed my mind as I wrote this book. I began by thinking you have nine people not elected by anybody, they can’t be kicked out, they work behind closed doors, this is not a good thing, this is not democratic. Then I realized the only opposition we have to a very powerful executive branch, an increasingly autocratic executive branch, is the Supreme Court. The judges on that court are the only people who can decide, ‘You can’t do that.’ They are the real opposition to government in this country. And as such, they are very valuable and important.
Q: So it’s a good thing they run our lives?
A: It’s a good thing they are able and ready to challenge governments—federal and provincial—and bring them to more constitutional ground. It’s a good thing they protect minorities from the tyranny of the majority.
Q: So what’s the problem?
A: The problem is that the country has gone Charter mad. Many issues that used to be solved in the political domain are now characterized as legal issues. There has been a transfer of political debate away from elected representatives to the courts and judges.
Q: Aren’t politicians complicit in this when they bring constitutional “references” and ask the court to weigh in on a difficult issue?
A: Politicians can now say, “Oh, that’s a tough one. That’s a Charter problem.” That’s not a power grab by judges. That’s politicians passing the buck. The judges don’t like these references. Currently there is a reference to the court on a national securities regulator. That is an inappropriate subject for the court. It’s going to the court because politicians can’t solve it, or don’t want to try. Or take the issue of Canada’s prostitution laws. How we think about prostitution is, to me, a political issue. But the more difficult, complex, and politically controversial something is, the more likely it is to end up in the courtroom.
Q: Are we heading to a constitutional confrontation between the court and the executive?
A: I think it’s inevitable. There have been a few times when the court was close to over-stepping the mark. It came close to instructing the federal government to seek the repatriation of Omar Khadr, a Canadian citizen, when it decided Khadr’s Charter rights had been breached at Guantánamo Bay, where he is a prisoner. You could sense them edging up to a much more overtly political role, getting involved in foreign relations.
Q: You write: “A Supreme Court judge is chosen by the prime minister, in private, using whatever criteria he happens to find appealing at the time.” What process would you propose?
A: There are four judges on the court who within the next four years or so will reach the mandatory retirement age of 75. There are others who may retire early. The next PM will shape this court, through appointments, for a generation and beyond. The people he appoints will draw the social and economic face of the country for decades to come. In light of that, the process for appointing judges should change. I favour the U.S. model.
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