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opinion constitutional principles." Justice Rosalie Abella, a leader of the court whose views have been consistent over many years, said as early as 1989: "The legis- lature which relies on majority support cannot be expected to risk political self- destruction by promulgating minority causes. The courts risk nothing." Speeches can be interpreted benign- ly, and maybe they should be, but cases speak for themselves (although cases can be selected mischievously to prove a point, as any lawyer knows). Four well- known Supreme Court decisions (there are many others I could pick) illustrate the court's role as official opposition. In 1998's Vriend v. Alberta, the court, using the "reading in" technique and applying the Charter, found that the Alberta Human Rights, Citizenship and Multiculturalism Act afforded protec- tion to gays despite the fact that the provincial legislature had refused on five occasions to include sexual orienta- tion as a prohibited ground of discrimi- nation. Justice Frank Iacobucci said for the majority, "When the Charter was introduced, Canada went . . . from a system of parliamentary supremacy to constitutional supremacy. . . ." In 2005's Chaoulli v. Quebec (Attorney General), the Supreme Court struck down laws that made it illegal to take out private insurance for publicly available health services, radically changing the contours of Canada's beloved medicare. Justice Marie Deschamps said: "Deference can- not lead the judicial branch to abdicate its role in favour of the legislative branch or the executive branch." Roy Romanow, former premier of Saskatchewan and head of the Commission on the Future of Health Care in Canada, wrote in the commission's 2002 interim report that the Canada Health Act was "virtually untouchable by any politician." He forgot about the judiciary. In April, I wrote in these pages about Canada (Prime Minister) v. Khadr. In that case, the SCC came close to instructing the government to seek the repatria- tion of Omar Khadr from the United States, but stopped just short, citing "the reluctance of courts to intervene in mat- ters of foreign relations." This question may be revisited as Justice Minister Rob Nicholson announced July 12 the govern- ment would be appealing a Federal Court ruling in the case that ordered it to come up with solutions to breaches of Khadr's constitutional rights. Now we also have Ontario (Public Safety and Security) v. Criminal Lawyers' Association, released on June 17, in which an unanimous seven- member panel held that, where there is a compelling public interest, the Charter gives access to confidential government information (although, in the case itself, access was not granted to an internal police report on a botched investiga- tion, on the grounds that denial did not preclude meaningful public discussion). These two cases show a court unafraid to confront executive power, although they disappointed those who wanted a dra- matic standoff with the government. No wonder that in a 2007 New Zealand law review article, three legal scholars described Canada's judges as "the most judicially activist in the com- mon law world — the most willing to second-guess the decisions of the elected legislatures. . . ." There has been a fundamental shift in the Canadian Constitution, elevating the judiciary to a position of pre-emi- nence, making judges, not legislators, the people who stare down the execu- tive. The same thing has happened in the United Kingdom. Incorporation of the European Convention on Human Rights into British law has limited par- liamentary sovereignty and given judg- es new power. Replacement of the judi- cial committee of the House of Lords by the new Supreme Court of the United Kingdom has further encouraged the judiciary to take on the government. But, have no fear, this may be a good thing, undemocratic though it is. Isn't it better to have nine smart people, immune from the political winds of the moment, deciding our fate carefully and giving us written reasons explaining what they're doing, than to trust an autocrat or rely on a bunch of parlia- mentarian shouting at each other across the aisle? Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at philipslayton.com. www. C ANADIAN Law ye rmag.com A UGUST 2010 17 sight_CL_Aug.indd 1 7/13/10 1:59:32 PM