Constitutional law expert Dwight Newman says recent Supreme Court rulings 
raise serious questions for democracy and the rule of law
OTTAWA, March 20, 2015 – The Supreme Court of Canada could be squeezing out room for democratic debate with a string of recent decisions that have expanded the court’s rightful role of interpreting the law, says Macdonald-Laurier Institute Senior Fellow Dwight Newman in the latest Straight Talk Q&A.
Decisions on assisted suicide, public servants’ right to strike and the constitutionality of prostitution laws have drastically altered the role of the Court in Canada’s democracy.
“The Court’s decisions end up creating a lot of constraints”, says Newman. “In some instances, Parliament could potentially even find a better way of dealing with some of the issues, but the way the Court’s decisions are framed may actually close that off”.
To read the full Q&A, click here.
Newman cites the Court’s Saskatchewan Federation of Labour decision, which granted public servants a right to strike, as one example.
Governments could, in the future, find an innovative new labour relations system but be constrained by an outdated model that now has the right to strike as a significant component.
“The Court has made rigid things on which there should be more room for governments to find creative policies”, he says.
The Court’s move to a more activist position has also undermined an important component of the rule of law: consistency. The recent decisions show a remarkable disregard for the judicial principle of precedent.
Interpretation of the law will change over time as new events and circumstances arise, Newman says, but the Court should offer compelling reasons for doing so. That hasn’t happened with recent decisions.
“Unless there’s a very good reason for a change, the court should stick with the decision that has been made, otherwise people won’t know what the law is”, he says.
The Court’s recent activism also increases the likelihood that provincial and federal governments will make use of the Charter of Rights and Freedoms’ notwithstanding clause to sidestep Court decisions. Politicians have been reluctant to use the notwithstanding clause due to public opinion, but “that could change in a single moment if the Court rendered a judgment strongly out of step with Canadian values”, Newman says.
MLI was able to draw the following recommendations from its interview with Dwight Newman.
- The Supreme Court should be very cautious about overturning precedent and should take great care in explaining its reasons for doing so.
- The Court should try to leave room where possible for legislators to find solutions to Charter issues that are in line with public opinion and democratically debated.
- Government needs to find a constructive way forward and remain assertive in respect of its policies.
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Dwight Newman is a Senior Fellow at the Macdonald-Laurier Institute and is a professor of Law and the Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan.
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