August 8^th, 2000

It has not been recognized for the momentous legal and political victory that it is, but the recent admission by the Press and a senator respectively that it is not so much a matter of the ascendancy of judicial supremacy that must be feared, but that of political paralysis in Ottawa that prevents the settling of critical national issues, this paralysis itself is an affirmation of lack of real democracy circumscribed by the political process itself.

This is what a minority of us have been saying all these years. Hopefully the debate will continue, this time at an advanced and informed level. Some people are finally beginning to get the gist of the problem posed by the political -judicial dichotomy of Canada.

In an editorial entitled “This is a Crime”, the Toronto Sun of July 31^st, 2000 states: “Governments have hidden behind the courts on issues like abortion and gay rights for years now, preferring to defer to judges rather than risk offending any parts of the electorate.” Indeed. Unlike governments, courts of first instance cannot duck issues that come before them. The late Justice Jules Deschênes learnt to his horror when he refused a case that came before him in the late 1970s. He rejected it because it properly belonged in the political arena. A legal and political firestorm ensued. How could a judge toss a case out on the basis that it is a political question rather than a legal question? No judge at first instance to my knowledge has refused a case ever since. But the political arena is awash with deferred, or avoided legal and political questions.

Enter Liberal Senator Serge Joyal who stated early August 2000 that the house of commons is democratically crippled and is close to no more than a media event whose credibility continues to diminish. Now we are expected to have more faith in the politics characterized by indecision than in the judiciary! We also are aware as revealed by Professor Savoie in his book, Governing from the Centre, that in Canada, all meaningful and real power in the country reposes in the hands of the Prime Minister and not in the Cabinet or House of Commons. We already knew this. By extension real power in the provinces reposes in the premiers and at municipal level, in the mayor and not the council. What pathetic democracy do we have here? How do we continue to let this happen? Or do we deserve this because of our apathy?

I am not saying that because of these shortcomings in democracy, we must have unquestioning faith in the judiciary. The judiciary is a very conservative institution. By the nature of their jurisdiction, judges can only decide one case at a time. They cannot cast a long-range democratic culture except haphazardly and accidentally. That is the responsibility of the politics and the electorate. It just means we must be more critical of our political institutions than we have been, because we have been too busy casting our sharp eyes to the judiciary, which has largely been doing its job in the face of parliamentary paralysis and media grandstanding.

The tension between the politics and the judiciary is healthy for democracy. Whenever the politics and the judiciary converge, it spells disaster for democracy, especially the interests and rights of minorities. Look at these examples when the convergence of politics and law meant catastrophe for minorities: slavery and segregation; the internment of Japanese-Americans and Japanese Canadians, the historical treatment of Jews and Native North Americans, women, gays lesbians etc. Whenever there was a parting of the ways between the politics and the judiciary on these issues, the rights of minorities began to blossom like a hundred flowers. There are indeed times when the judiciary should lead the politics of the times. This is the time when women, gays, Jews, Native Canadians and other minorities have felt a sense of belonging.

Is there something I am missing here?

August 8th, 2000

August 8^th, 2000