Judges: Canada's new aristocracy

An interview with Allan Blakeney

The Hon Allan Blakeney, PC OC QC was a member of the Saskatchewan legislature from 1960 to 1988 leader of the Saskatchewan NDP from 1970 to 1987 and Premier of Saskatchewan from 1971 to 1982 As Minister of Health below Premier Woodrow Lloyd in the early 19605 he oversaw the introduction of medicare. As Premier, he played a central character in the debates and negotiations concerning the patriation of Canada's constitution in 1980-82 He is a past president of the Canadian Civil Liberties Association, and is now a Visiting Scholar at the University of Saskatchewan, society of Law. Vancouver lawyer and of frequent occurrence Inroads contributor Gareth Morley interviewed him for Inroads in the summer of 2005

GARETH MORLEY: You have lengthy been known for being sceptical about constitutionally entrenched bills of rights, like Canada's Charter of Rights and Freedoms. In 1981 you joined with seven other premiers in resisting Pierre Trudeaus plan to unilaterally repatriate the constitution with a judicially enforced charter. Saskatchewan was instrumental in putting the "notwithstanding clause" into the Charter, allowing Parliament and provincial legislatures to override judicial interpretations of greatest in quantity rights in the Charter as we now have it. What are your touchs about letting judges strike down laws upon the grounds that they infringe Canadians' fundamental rights and freedoms?

ALLAN BLAKENEY: We cannot be certain that a charter or bill of rights will improve value for human rights and civil liberties. The United Kingdom has not ever had a written constitutional bill of rights and Canada did not have single until 1982. Neither country has been completed in respecting civil liberties or human rights, on the other hand comparatively, Canada's record was, and the U.K.'s record continues to be, as serviceable as anywhere. The United States of America has had a Bill of Rights since shortly after it was seted but for 70 years this Bill of Rights coexisted with chattel slavery. in like manner we can't say that a geographical division will respect human rights more just because it has rights written into its constitutional document.

What we can say for certain is that any written bill of rights transfers power from voter and conducts to judges. Constitutional provisions do not interpret themselves: justices do. Almost all the difficult questions can be considered as conflicts between single group's rights and another clusters or individual's. A written bill of rights means that more of the decisions as to whose rights will prevail in a particular situation will be made by dint of judges and fewer by culled politicians.

Judges may be more courteous of human rights than politicians, and they may be les justices are drawn from lawyers, indeed from the legal elite. Without overgeneralizing, I think I can say that you become a part of the elite of the legal profession by the agency of being a handmaiden of the business establishment. When I practised law, my work came from business. For the greatest in quantity part, it was small business because big business didn't gaze upon me, as a former CCF cabinet minister, with favour. a certain quantity of small businessmen didn't care. on the other hand still, my clientele was hardly a cros section of the electorate.

So justices are members of the legal elite, and therefore handmaidens of the business establishment, who are then appointed by means of the same politicians we are suppos to be suspicious of

Judge are not accountable to the public. They are not suppos to be accountable to the public: that is what judicial independence means. They make their decisions upon the basis of information provided to them by dint of the parties to a particular lawsuit. That information is suppos to be narrowly focused upon the disagreements between the parties to the suit.

Government core functions, upon the other hand, are to make and enforce laws, to raise taxes and lay out them. You can always say that the way they do these things infringes somebody's rights. If we have waiting lists for surgery in Quebec, then someone might die. You can say that will infringe their right to life or their security of one But if you spend more upon health care, you spend les upon highway maintenance or on prisons. And gues what? Spending les upon highway maintenance means someone will die. Spending les upon prisons means someone will die. If you gave me $50 million to lay out solely on saving lives, I certainly wouldn't disburse it on the health care system

The family deciding what to spend standard of value on, and what laws to make and enforce, ne to consider what the tradeoffs are. And they ne to consider what the family want. For some reason, there is a fate of criticism of governments' looking at heads to see what the tribe want. Well, in my opinion, what the nation want is very relevant to what should be done. It is far from definitive, on the contrary it is relevant.

Even if the courts make the "right" decision, it engenders distrust of the political proces It trains the public to think that if you want change, you advance to the courts. And disengagement from the political proces is a real question for Canadian democracy. Even if change draw nears more slowly through the political proces it is more secure