COURT GIVES OUR TOOTHLESS CHARTER SHARP FANGS

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.