It has been noted that the courts have been playing an influential and substantial role especially in politically sensitive issues such as the discrimination against gays and lesbians as seen in the cases of Vriend v Alberta 1998 and M v H in 1999. In the Vriend v Alberta case, Mr. Vriend lost his job as a laboratory assistant in Alberta College on the basis of him being gay. This decision was appealed to the Supreme Court after initially having tried to appeal to the Alberta Human Rights Commissions. The Supreme Court unanimously ruled against this action and established that Mr. Vriend’s equality rights had been violated. In the next case of M v H the Supreme Courts verdict established that the definition of spouse by the Ontario’s “family law act “violated the equality of gay couples in a manner which could not be explained on the basis of reasonable limit on equality . Since then more than 360 federal and a large many provincial legislative situations have acknowledged gay relationships and granted benefits. However the extent of the Judiciary’s involvement in striking down these legislations, (which have been considered the turning point of gays rights issues) have been undertaken in the correct, democratic fashion. In each case the parliament has first passed the legislation, which has been appealed to the Supreme Court and then these legislations have been struck down as they were viewed as unconstitutional. The process of the Parliament first establishing a stand and passing legislation and then if there is dissatisfaction with the passed legislation and once having appealed to the Supreme Court and only then intervening is an execution of the political process in its correct democratic form. By keeping to the individual roles of the judiciary and the legislature the political process enables dialogue and deliberations on legislations passed and if conflicts do arise the role of the Supreme Court is expressive of the claims and interests of the general public and minority groups and insures that they are not being neglected.
There is no denying that there is a great deal of support for the new role of the judiciary’s. Before the inclusion of the Charter into the constitution the general public was (and to some extent still is) dissatisfied with the unquestioned power of the Parliament and the legislatures. Many minority groups and interest groups felt that their interests were being neglected. With the enhanced role of the judiciary these minority and interest groups have a say against the “majority of the tyranny” and a facet through which their interests and claims can be addressed and if sound the legislations passed by Parliament can be struck down.
This new role of the judiciary does indeed improve the democratic element of the Canadian state, but it is imperative that this new found judicial power and authority should be exercised in the proper constitutional manner. The judicial system with its new found power base has helped to keep a healthy measure of checks and balances on the unprecedented power of the Prime Minister and the Ministers. Those who argue that the judiciary now seems to be making the laws, are conveniently ignoring the fact that at the end of the day section 33 the notwithstanding clause is a precaution which enables the legislation and the Parliament to have the last say. Of course the use of it cannot be frequent and should be reserved for critical issues, but nevertheless this clause disputes the claims that all power now resides with the Judges.
However the issue of the definition of “marriage” whether it constitutes the union of two individuals of the opposite sex, or whether it can also be applied to same-sex unions has been deferred to the Courts for their reference and this act deviates from constitutional political process for several reasons.
The Parliament and the legislatures have been delegated the authority and support to pass legislations as they are the elected representatives of the Canadian Public. They are accountable to the House of Commons and thus persevere the important tenant of “responsible government”. The judiciary on the other hand is a hand picked panel by the Prime Minister, are not elected representatives and are not accountable to the Canadian public or the House of Commons. Additionally their responsibility, duty and expertise does not lay in promulgating laws which is in effect what they are doing under the Reference strategy of the Parliament, but is limited to their scrutiny of whether or not they are in accordance with the Rights and Freedom as established in the Charter. Thus deferring to courts on matters or legislations which have not been passed as yet, and on which the Parliament has not yet taken a stand, is bypassing the democratic process thus disabling accountability ,dialogue by restricting Judicial Review which is important in enabling “responsible government “ to function .
BIBLIOGRAPY
Joseph F. Fletcher , Paul Howe “ Public Opinion and the Courts “ May 2000 p 52 < >
Janet L.Hiebert “ From equality rights to same sex marriage – Parliament and the Courts in the age of the Charter , October 2003, < >
Janet . L. Hiebert “ Wrestling with rights, Judges , Parliament and the making of Public Policy ” June 1999,
Peter W , Hogg , Allison A. Thornton “ The Charter Dialogue between Courts and Legislatures “ April 1999 < >
F.L Morton “Dialogue or Monologue? ” April 1999 < >
Mark Charlton, Paul Barker “Cross Currents: Contemporary Political Issues “ Nelson Canada 1994 , 2nd Edition .
Janer L.Hiebert “ From equality rights to same sex marriage – Parliament and the Courts in the age of the Charter , October 2003, < >
Joseph F. Fletcher , Paul Howe “ Public Opinion and the Courts “ May 2000 p 52 < >
