(This
column was published in the North
Shore News on
Aug. 19, 1998)
Supreme
Court verging on 'Judocracy'
By Leo Knight
A
recent discussion in this space about the Supreme Court and the
Vriend decision predictably generated much debate and response
from the readers. That is good.
However,
one reader was able to point out a particular point where I made
a mistake. That is bad.
That
column discussed the Supreme Court's position in telling the
duly elected government of Alberta what it must do with its
legislation. In my view, this is contrary to the principles of a
democracy. Not that we actually live in a democracy, but we
think we do.
The
Vriend decision, you may recall, concerned the Alberta teacher
fired by his employer, an evangelical private institution,
ostensibly because he was an admitted homosexual. Delwin Vriend
fought the dismissal up through the courts, taking on the
Alberta human rights legislation.
Along
the way to the Supreme Court, a number of "interested"
groups obtained intervenor status with the court and got in on
the big show.
In
the true spirit of what a circus this matter became, here is a
list of the groups the court recognized either as an active
party to the action or with intervenor status: Gala-Gay and
Lesbian Awareness Society of Edmonton, Gay and Lesbian Community
Centre of Edmonton Society, Dignity Canada Dignité for Gay
Catholics and Supporters, the Attorney General of Canada, the
Attorney General for Ontario, the Alberta Civil Liberties
Association, Equality for Gays and Lesbians Everywhere (EGALE),
the Women's Legal Education and Action Fund (LEAF), the
Foundation for Equal Families, the Canadian Human Rights
Commission, the Canadian Labour Congress, the Canadian Bar
Association-Alberta Branch, the Canadian Association of
Statutory Human Rights Agencies (CASHRA), the Canadian AIDS
Society, the Alberta and Northwest Conference of the United
Church of Canada, the Canadian Jewish Congress, the Christian
Legal Fellowship, the Alberta Federation of Women United for
Families, the Evangelical Fellowship of Canada and Focus on the
Family (Canada) Association.
Lost
in all of these special interest groups and government
departments was Delwin Vriend, the gay teacher who felt he
should not have been fired from his job because of his sexual
orientation and his employer, the religious school who felt his
moral position was objectionable and not suitable for their
students who pay princely sums for the privilege of a strict
Christian education. Both parties felt they were right and
principled. Off went the legal parade with the aforementioned
groups climbing aboard the bandwagon at various points along the
route.
Back
to my error. I had said that Mr. Justice Bastarache, newly
appointed to the bench at the time of the Vriend hearing, had
not heard the arguments and should not have sided with the
majority. I was confused on the timing of the date of the
hearing and the death of Mr. Justice Sopinka, who did hear the
case, but died before the decision could be rendered.
In
point of fact, Mr. Justice Bastarache did not replace Sopinka,
but rather, he replaced the retired Justice LaForest.
I
have checked the roster on the bench for the hearing and Mr.
Justice Bastarache was present for the arguments. In fact, this
was among his first few cases heard.
Bastarache
was appointed in October by the Prime Minister who, undoubtedly
wanted a sympathetic voice on the bench for the upcoming
decision on the ability of a province, Quebec, to unilaterally
separate from the confederation. That decision, by the way, is
due to be released tomorrow.
Bastarache
was active on the "Yes" committee during the attempted
governmental brainwashing of the electorate over the
Charlottetown Accord. But I'm sure he won't bring any of that
baggage to the current case.
Which
brings me back to the salient question. Should the Supreme Court
have the authority to instruct the duly elected government on
what they should or should not have in their enacted laws?
The
superior courts under the British system of justice, from which
our system evolved, was designed to rule on legal arguments,
points of law and to interpret the laws as written by the duly
elected legislative body. Anything more is presumptuous and
arrogant.
But
that is exactly what the Supreme Court demonstrated in the
Vriend decision.
The system we currently employ to place individuals on the bench of the Supreme Court is simply no longer acceptable, if indeed it ever was.
The
Prime Minister of Canada, essentially a dictator for five years,
simply appoints whoever he or she decides, driven by whatever
political agenda the PM has at that point.
But
the appointments outlast most governments and Prime Ministers.
The nine men and women of the Supreme Court are essentially
appointed for life. Theoretically, there is a process to remove
someone who has disgraced the office, but in reality, I could
find no instance of any attempt ever having been made.
Our
society is supposedly a democracy. We, the citizens of this
country, are supposed to have a say in the way we are governed,
who shall govern us and what policies and laws we want to live
under.
Having
a Supreme Court tell any duly elected government what they
should or should not do by way of making law is a very slippery
slope.
While
our current situation is by no means a democracy in its true
form, surely we do not wish to live in a "Judocracy."
The
Supreme Court needs to get that message loud and clear. We need
to seriously look at how people are put in that lofty position.
As it stands, the trolley is destined to run off the tracks and we will all be casualties of the resulting crash.
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