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TOP COURT TALES BY PHILIP SLAYTON official opposition More than the The top court is unafraid to confront executive power but it's not always a dramatic standoff with the government. T he Supreme Court of Canada is the official opposition. Actually, it's a good deal more than that. The court doesn't sit around criticizing and whining about the government the way opposition parties do in Parliament or in a provincial legislature. It simply tells the government what to do. It's commonplace to complain about the autocratic use of executive power. The newspapers routinely go on about Prime Minister Stephen Harper's dis- dain for Parliament and his presiden- tial style of government. Similar com- plaints are made about some prov- incial premiers; Danny Williams of Newfoundland is a particular target of this kind of criticism. There is little doubt about the degradation of the legislative branch in Canadian govern- ment over the past several years. Who has stepped into the breach? Why, the judiciary has, and especially the Supreme Court, wielding the huge powers given to it by the constitution- ally entrenched 1982 Charter of Rights and Freedoms. Most sensible commentators, of course, don't talk this way. Supreme Court judges themselves, most of the time, carefully speak of "a dialogue" between branches of government, emphasizing "mutual respect." Professors are bolder, as they can afford to be, particularly the pro- fessoriate's plentiful cranks and outliers. They sometimes argue, for example, that the Supreme Court, in hot pursuit of a left-wing agenda, has derailed the legisla- tive process in an egregious way (Robert Martin in his book The Most Dangerous Branch); or that the Charter is a regres- sive political instrument used by judges to promote the interests of the economically privileged (Andrew Petter in The Politics 16 A UGUST 2010 www. C ANADIAN Law ye rmag.com of the Charter); or that sometimes it's alright for the legislature to ignore what the courts have to say (Dennis Baker in Not Quite Supreme). Of course, there's always the voice of reason, gently pur- suing an analytical middle road (Kent Roach in The Supreme Court on Trial). Getting back to Supreme Court judg- es themselves, if you browse through speeches they've given over the years, you get a picture of beliefs more robust than the official line. Chief Justice Beverley McLachlin said in 2005 that there are times when the court must enforce norms that "transcend the law and executive action. . . . The task of the judge, confronted with conflict between a constitutional principle of the highest order on the one hand, and an ordin- ary law or executive act on the other, is to interpret and apply the law as a whole — including relevant unwritten DARCY MUENCHRATH