Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M A Y 2 0 1 5 17 the annoying resistance of mere elected governments to its increasingly imperi- ous will" and "the insidious corruption of purpose of the law, the legal profession and the courts." He likened judges using the law for social change to "Russia's slow-motion invasion of the Ukraine." Canadian judges are like Russians invad- ing Ukraine? Crikey! Who knew? At least Crowley didn't compare the Canadian judiciary to the Islamic State. It would be easy to dismiss Messrs. Gibson, Coyne, and Crowley as cranks with predictable views, the usual sus- pects, but there's more to it than that. I think their strong (and somewhat absurd) opinions are straws in the wind. There's growing unease out there. In the hinterland, perceptions of the judiciary may be changing, to the detriment of judges. Could it be that more and more Canadians, as they watch judges rejecting or changing important laws, are think- ing, "Who elected these guys anyway?" Has the judiciary overplayed its hand? Questions like these will become front and centre as we move towards a federal election. They will be asked by angry and opportunistic Conser- vative politicians who think they are reading the pulse of the nation. In the heat of campaign battle, Conservatives will advocate widespread use of the Charter's notwithstanding clause, s. 33, which allows Parliament or a provincial legislature to exempt legislation from Charter provisions. After all, that's what the notwithstanding clause is there for, they will say, to prevent the judiciary from subverting the will of the people expressed through their elected repre- sentatives, i.e., us. If the Canadian peo- ple want a ban on assisted suicide, for example, let's reintroduce that Criminal Code provision and use s. 33 to exempt it from the Charter. Time to put the judges in their place. Since 1982, it has been the conven- tional wisdom that the notwithstanding clause, which at the time represented a political compromise, should only be used in extraordinary situations — if ever. It has been seldom employed and seldom threatened. One reason is that the optics of its use are considered to be extremely bad. What politician wants to be seen as against fundamental rights and freedoms? But political attitudes could change, particularly if there is a general perception that the Canadian people are concerned about the abuse of judicial power. Use of the notwithstand- ing clause could become acceptable and commonplace, with a huge effect on the Constitution. There lies the danger. And so the judges, particularly those of the Supreme Court, must consider their position carefully. There are deli- cate calculations to be made. I have long been, and remain, a staunch advocate of the Charter of Rights and Freedoms and the sway it gives to the judiciary. Using the Charter, the judges protect us all. But, members of the judiciary, judges of the Supreme Court of Canada: be wary. Do not hand your enemies an easy opportu- nity to upend the Constitution. Watch the balance. I say again: be wary. Philip Slayton's new book Mayors Gone Bad comes out this month. OSGOODE PROFESSIONAL DEVELOPMENT CONTINUING LEGAL EDUCATION UPCOMING CLE FOR PERSONAL INJURY PRACTITIONERS To Register: www.osgoodepd.ca; Or Call: 416.597.9724 or 1.888.923.3394 Or E-mail: OsgoodePD@osgoode.yorku.ca A WORLD LEADER IN LAW SCHOOL LIFELONG LEARNING Priority Service Code: 15-99CL The Osgoode Short Course: Advancing or Defending the Brain Injury Case May 27, 2015 (Online Replay) 11th Annual Update: Personal Injury Law & Practice October 14, 2015 (Live & Online) Succeeding On Mediations: A Toolbox For Advocates October 29 - 30, 2015 (Live & Online) Expert Evidence In Personal Injury Cases: Winning Strategies and Techniques December 10, 2015 (Live & Online) Mastering Cross-Examinations May 29, 2015 (Live) BOOST YOUR ADVOCACY SKILLS THESE PROGRAMS ARE ELIGIBLE FOR GOVERNMENT GRANT FUNDING The Canada-Ontario Job Grant will pay for 2/3 of the program costs IRUTXDOLoHGDSSOLFDQWV/HDUQPRUHDWZZZRVJRRGHSGFDJUDQW

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