Monday, March 1, 1999

Robert Fife
Ottawa Bureau Chief

p. A1.

Ex-premiers call for use of charter's 'safety valve' Governments must curb judges' power: Lougheed, Blakeney

Two of Canada's most distinguished former premiers are urging the federal and provincial governments to selectively use their constitutional powers to override judicial rulings that seriously offend the public good.

Alberta Conservative Peter Lougheed and New Democrat Allan Blakeney of Saskatchewan said they are apprehensive about the growth of judicial power since the Charter of Rights and Freedoms was introduced in 1982.

The two men, along with Sterling Lyon, the former premier of Manitoba, were instrumental in putting the notwithstanding clause in the charter out of concern parliamentary supremacy could be eroded by judge-made law. (Mr. Lyon declined to comment because he is now a judge on the Manitoba Court of Appeal.)

The notwithstanding clause allows Parliament and the provincial legislatures to set aside court judgments for up to five years, and was intended to put a brake on judicial activism. It has rarely been used because politicians have been afraid to invoke it.

"If you are going to have a charter of rights, you are going to have to have a safety valve," Mr. Lougheed said.

"It should be used when the elected legislatures believe that judge-made law is not in accordance with the citizens and I'm glad we have it."

Mr. Blakeney said judicial activism is becoming a "modestly growing problem," particularly for westerners and rural Canadians, where citizens are objecting to the "courts using the charter of rights to reinforce a more liberal, non-restrictive approach to lifestyle issues."

Messrs. Blakeney and Lougheed said the notwithstanding clause should be invoked if the Supreme Court of Canada upholds a lower court ruling in British Columbia that allows people in the province to possess child pornography.

However, they both objected to calls by the Reform party for Anne McLellan, the federal Justice Minister, to invoke the clause in the B.C. case before the appeal process has been completed. The former premiers said the notwithstanding clause should not be used until due process has been completed, and it should not be invoked frivolously.

Nonetheless, both said politicians should not be afraid to invoke the clause when they feel it is warranted, even though most lawyers and opinion-makers have campaigned against its use.

"The lawyers particularly, but to some extent the journalists, have created the idea that this is somehow illegitimate, that this really isn't part of the charter, that it ought not to be there," said Mr. Blakeney, a senior fellow at the University of Saskatchewan.

"I believe it would be a good idea if governments began to use the notwithstanding clause a little more frequently, because I think it is important to develop some creative tension between the legislatures and the courts when the courts are moving into areas which have been the traditional preserve of the legislatures. That they are doing that, I think there is no doubt."

Mr. Lougheed, a Calgary lawyer who sits on the boards of many major Canadian corporations, said politicians are wary of invoking the clause because of the public backlash in 1987 when the Quebec government used it to override a Supreme Court ruling that struck down the province's language laws.

Lawyers, civil libertarians, and media outlets used the ruling to create a climate of "misunderstanding" about the notwithstanding clause that made "people nervous about it," he said.

However, Mr. Lougheed said politicians should not be afraid to invoke the clause when the courts make major mistakes, to assert the "supremacy of elected people as distinguished from appointed judges."

"I like the idea of the notwithstanding clause, and if legislatures used it more often, then we would develop a better sense of what the ground rules were as between legislatures and courts," added Mr. Blakeney.

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