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Found: Sat Nov 22 22:17:13 2003 PST
Source: Star, The (Malaysia)
Copyright: 2003 Star Publications (Malaysia) Bhd.
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Source: Toronto Star (CN ON)
Copyright: 2003 The Toronto Star
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Website: http://www.thestar.com/
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TheStar.com - Court gives our toothless charter sharp fangs

GTA

Court gives our toothless charter sharp fangs

ALAN YOUNG

REASONABLE DOUBT

With every passing year, our justice system becomes increasingly similar to American justice. Of course, there are some major differences: In Canada we may punish incarcerated murderers by denying them conjugal visits, whereas in many U.S. states murderers await the executioner. The differences in our criminal justice systems seem to parallel the differences between American and Canadian cuisine. Both are bland, lacking in creativity and loaded with fat, with the only difference being that Americans serve much larger portions.

This month, the Supreme Court of Canada quietly altered the balance of political power in this country in a uniquely American fashion. In the case of Doucet-Boudreau v. Nova Scotia, the court held that a trial judge can retain supervisory jurisdiction over the government to ensure the state complies with court orders made pursuant to the Charter of Rights. In this case, the trial judge ordered the Nova Scotia government to use its "best efforts" to provide the requisite French-language facilities and programs. Surprisingly, the judge then ordered the government to provide periodic reports on their efforts because the province had a checkered history when it came to implementing minority education language rights.

This reporting and monitoring requirement may seem unremarkable, but traditionally our courts have operated on an "out of sight, out of mind" ideology. The court issues a ruling, moves on to the next case and never really finds out if its ruling had any practical impact.

Our courts are governed by the Latin phrase functus officio once a verdict is rendered the judge is without further power to act in the case. I've always disliked this doctrine because I couldn't understand how a public official could simply walk away from a decision he or she made without finding out if it has been effectively carried out.

The problem with a judge gone functus became clear to me while I was conducting litigation to compel Health Canada to construct an effective and meaningful program for the medicinal use of marijuana. The good news is that there is a program in effect; the bad news is that the program sucks.

From the start, we asked various courts to assume supervisory jurisdiction over Health Canada because of reasonable fears this department would continue to implement the court's constitutional imperatives in an obstructionist manner. The courts have always rejected continuing judicial supervision, and faster than you can say functus officio, we were given a final verdict and a fond farewell. As expected, we have had to return to court repeatedly to force the department to show respect for the Constitution. Now the Supreme Court has authorized continuing supervisory jurisdictions over government agencies, and the government should no longer be able to evade, obfuscate or ignore court orders.

The decision has given a relatively toothless Charter of Rights some sharp fangs. Others think this shift in political power in favour of the judiciary is dangerous because judges are non-elected officials who should have a limited role in executive decisions made by government departments. American judges have for decades assumed supervisory jurisdiction and, in the process, have compelled, for example, the renovation of prison facilities and the restructuring of school districts. Supervisory jurisdiction was responsible for busing school kids far from home under armed guard in order to combat racial segregation. The U.S. approach has had its failings, but it has also ensured that courts are able to monitor compliance with their decisions.

I support greater remedial power for judges not because I am star-struck by the majesty of our judiciary. I support it because the true legacy of Pierre Trudeau was to leave us with a watered-down Charter of Rights full of escape hatches to protect the law from constitutional review by the judiciary. Whenever a judge finds that a law infringes the Charter, we allow the Crown to salvage this law by demonstrating in court that the law is a "reasonable limit" on constitutional rights. If the Crown cannot make this showing, the status quo is not altogether lost because the government can still re-enact the impugned law by invoking the "notwithstanding clause" in section 33 of the Charter.

Trudeau gave us a Constitution that allows the state to opt out of its requirements, so we don't have to worry about sanctimonious judges or those who fall asleep during trials, because in our constitutional landscape a judge can never have the final word in political affairs.

Judges should be bold and innovative when it comes to constitutional rights because the government can ultimately override the will of the judiciary if it believes it is politically expedient to invoke the "notwithstanding clause."

We should embrace the decision to extend the court's remedial jurisdiction in Charter cases as a monumental development on the road to meaningful and effective protection of constitutional rights. Now we just have to see if the sleeping giant will wake up and assume its new power and authority.

Alan Young is a law professor and criminal lawyer.



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