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This article was published 19/4/2011 (2379 days ago), so information in it may no longer be current.
How the Supreme Court of Canada
Runs Your Life
By Philip Slayton
Penguin, 250 pages, $32
Your life in Canada is governed by a shadowy group of men and women in black robes who are unelected, unaccountable and largely unknown.
Most Canadians couldn't name one of them.
Yet the nine justices of the Supreme Court of Canada have had a lasting impact on everything from abortion through same-sex marriage to Quebec secession.
Philip Slayton is the author of the 2007 hit Lawyers Gone Bad. A Toronto lawyer and University of Manitoba graduate, he moved from alarm to reassurance in the course of writing this interesting and readable book.
As a former law clerk for a Supreme Court justice in the 1960s, Slayton is well-positioned to observe how the court has been changed by the 1982 Charter of Rights and Freedoms.
In turn, he assesses how the court's decisions in these cases has changed Canada.
The title and the opening paragraphs reflect Slayton's initial position that the Supreme Court has usurped too much power from the legislative and executive branches of government.
As the cases unfold, it is clear that Slayton has difficulties accepting some judgments — permitting abortion, same-sex marriage and group sex in a public place — but does not want to tear down the entire post-Charter edifice.
When it comes to Quebec secession, the hot potato handed them by the Jean Chrétien government immediately after the 1995 referendum, Slayton concedes the justices achieved a "political masterstroke" by laying down four principles that must govern any secession by that province.
Other decisions have been a hash. A series of contradictory rulings on police searches under the Charter has resulted in confusion and uncertainty about the rights of the accused.
After reviewing the individual careers and views of each of the nine current justices, Slayton makes some valuable recommendations for systemic change.
Instead of appointment solely by the prime minister — with no established process — Slayton favours a U.S.-style public hearing by a parliamentary committee.
That has happened, once, and Slayton concedes it was a bit of a bust.
Canada could also adopt the U.K. approach, in which the prime minister must consult formally with the legal profession and lay people.
Slayton would also bring in term limits for justices, require them to be fully bilingual, and force them to fully and publicly disclose their financial holdings.
Despite his focus on the balance between courts and legislatures, Slayton omits any reference to the notwithstanding clause of the Constitution.
That clause allows Parliament or a provincial legislature to overturn a negative court ruling by reenacting the legislation with a clause that makes it valid "notwithstanding" the Charter.
Former Alberta Premier Ralph Klein was reportedly furious when the Court "read in" equality rights for gays and lesbians to the Alberta human rights code when the legislature had several times refused to amend the act.
Slayton implicitly supports Klein's position, but omits the obvious solution.
He also falls a little short on his account of the abortion debate, saying only that Parliament "failed to act" after the court created a legal vacuum by striking down the law.
In fact, the House of Commons did pass new legislation, which the Senate refused to pass. It is perhaps inconvenient to Slayton's overall thesis to recall that unelected senators, at least as much as unelected judges, abolished the abortion law in Canada.
Slayton writes well — missing nothing of the substance by explaining nuanced judgments clearly and concisely.
Mighty Judgment makes good reading for any lawyer and any other Canadian interested in this most mysterious branch of government.
Donald Benham is director of public education at Winnipeg Harvest.