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 S E P T E M B E R 2 0 1 5 17 process; that makes the court pretty much immune to a Netanyahu-style leg- islative attack. And the Charter of Rights and Freedoms, the main source of judi- cial power, is likewise part of the Consti- tution and cannot be tampered with. It looks like we Canadians don't have much to worry about. Harper can't pull a Bibi. Our judges are safe. But it's not that simple. Harper doesn't have to emulate Netanyahu to dominate the highest court. For starters, the Cana- dian prime minister already has almost complete control over who becomes a Supreme Court judge, although control of the selection process has proven to be cold comfort. Harper has appointed seven of the nine Supreme Court judges, picking people he presumably thought were in his own image, but they have proven to be an ornery lot, at least in his eyes. Pay attention, Bibi; maybe that political control you want would turn out to be a chimera. Judges have a pecu- liar habit of letting their true colours show once they have been appointed and are safe from political influence and interference. As for the Charter of Rights and Freedoms, which you might think gives the Canadian judiciary untrammelled authority, why does everyone forget about s. 33, the notwithstanding clause, which allows Parliament or a provincial legislature to opt out of the Charter's most important provisions? True, it has seldom been used, and never by the fed- eral government, but that could change. Harper, if he is still prime minister after Oct. 19, might employ the notwithstand- ing clause, more in sorrow than in anger, to ensure unelected judges do not thwart the democratic will of the people (no doubt that's the way he would put it). During the election campaign, someone should ask him about this possibility; I wonder what he'd say. Is use of the notwithstanding clause unthinkable? Legal scholars seem to think so, they talk of a "taboo," but we shouldn't underestimate the wrath of a democratic leader who thinks his legis- lative program, mandated by the people, is being subverted by unelected judges. Remember U.S. president Franklin Roo- sevelt, when his New Deal legislation was under attack by the Supreme Court of the United States? His attorney gen- eral told him, "Mr. President, they mean to destroy us. . . . We will have to find a way to get rid of the present membership of the Supreme Court." After the 1936 election, Roosevelt asked Congress to empower him to appoint an additional justice for any member of the court over age 70 who did not retire (FDR never mentioned his intentions during the campaign). This was the famous court- packing bill. Faced with this threat, the court started approving New Deal legis- lation and the bill died. In a democracy, there is always ten- sion between elected representatives and unelected judges, each checking over their shoulder for the other. It's not a bad thing. It helps to keep every- body on the straight and narrow. It's normal. Relax, Stephen and Bibi. Philip Slayton's latest book is Mayors Gone Bad. Because business issues are legal issues. So if you want to get ahead in business, get the degree that gets you there faster. ONE YEAR – PART - TIME – NO THESIS FOR L AWYERS AND NON - LAWYERS law.utoronto.ca/ExecutiveLLM GPLLM Global Professional Master of Laws [Get a Master of Laws] Untitled-1 1 2015-02-25 8:38 AM

• Cover