Press Release, June 12, 1998: S.C.C. Bashing

See also: Response to a letter to the Editor of the Lawyers’ Weekly

56 Temperance Street, Suite 800
Toronto, Ontario M5H 3V5


The Criminal Lawyers Association deplores recent attacks on the Supreme Court of Canada as ill-conceived and misguided applications of Parliamentary Supremacy doctrine and unfair attacks on an institution that cannot as a matter of law defend itself.

‘We see too many bullies because it is easy to be seduced by the power that comes from attacking someone who cannot defend themselves. It is shameful when such conduct comes from political leaders. Parliamentary Supremacy makes Parliament supreme within its jurisdiction. An exercise of that jurisdiction gave us a Charter of Rights that is a model and a beacon of liberty around the world. The guardian of that Charter is the Supreme Court of Canada. That Court since 1982 has given us world-class judgments involving human rights and fundamental liberties that are read and cited and admired by courts around the world. We are unaware of any jurisdiction that has looked to the Reform Party platform for guidance on any issue.

Politicians are too easily blown onto an ill-conceived course by whatever strong winds happen to fill their sails. They too easily jettison rationality and restraint whenever hailed by misinformed and intemperate lobby groups. On the other hand, there is a worldwide movement towards the recognition of fundamental rights and their indomitable protection in a basic Charter of Rights protected by an independent judiciary.

The Supreme Court cannot defend itself so we must. Our members obviously do not agree or like all its decisions. Every contested decision by definition leave an unhappy party. But criminal lawyers especially understand the importance of the Rule of Law and the absolute inviolate necessity for an independent judiciary to decide cases according to what is right and just and legal. It is Parliament’s record, not the Supreme Court’s that is wanting in this regard.

In Regina v. O’Connor the Supreme Court majority decided the level of access to therapy records that is constitutionally required to give accused person’s a fair trial. Parliament in response to lobby groups passed inconsistent legislation widening the secrecy of records far beyond therapy records and adopting the minority dissenting views as though there was no majority decision in O’Connor. The government, joining common cause with lobby groups that appear hostile to the presumption of innocence and untroubled by even the remotest possibility that an innocent person may be convicted, did this knowing the unconstitutionality of the legislation was clear according to O’Connor. And it did this without the intellectual honesty to insert a ‘notwithstanding clause’ which is the Charter’s gateway for Parliament to overrule Charter decisions it does not like. With a historical record such as this surely we can be excused for being grateful that the final word on our fundamental rights rests with the Supreme Court of Canada. Certainly a ‘notwithstanding clause can be used by politicians to have their own way, but that requires courage and standing up and admitting what you are doing, so we have no real fear of that happening.

We hope this sorry episode of court-bashing – something that once was popular in the United States but is a relatively unknown phenomenon in Canada – will terminate immediately not to reoccur.

Alan D. Gold, President