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Judges: Canada’s new aristocracy

6-Blakeney-photo-printAn interview with Allan Blakeney 

The Hon. Allan Blakeney, PC, OC, QC, was a member of the Saskatchewan legislature from 1960 to 1988, leader of the Saskatchewan NDP from 1970 to 1987 and Premier of Saskatchewan from 1971 to 1982. As Minister of Health under Premier Woodrow Lloyd in the early 1960s, he oversaw the introduction of medicare. As Premier, he played a central role in the debates and negotiations concerning the patriation of Canada’s constitution in 1980–82. He is a past president of the Canadian Civil Liberties Association, and is now a Visiting Scholar at the University of Saskatchewan, College of Law. Vancouver lawyer and frequent Inroads contributor Gareth Morley interviewed him for Inroads in the summer of 2005.

Gareth Morley: You have long been known for being sceptical about constitutionally entrenched bills of rights, like Canada’s Charter of Rights and Freedoms. In 1981, you joined with seven other premiers in resisting Pierre Trudeau’s plan to unilaterally repatriate the constitution with a judicially enforced charter. Saskatchewan was instrumental in putting the “notwithstanding clause” into the Charter, allowing Parliament and provincial legislatures to override judicial interpretations of most rights in the Charter as we now have it. What are your concerns about letting judges strike down laws on the grounds that they infringe Canadians’ fundamental rights and freedoms?

Allan Blakeney: We cannot be sure that a charter or bill of rights will improve respect for human rights and civil liberties. The United Kingdom has never had a written constitutional bill of rights and Canada did not have one until 1982. Neither country has been perfect in respecting civil liberties or human rights, but comparatively, Canada’s record was, and the U.K.’s record continues to be, as good as anywhere. The United States of America has had a Bill of Rights since shortly after it was founded, but for 70 years this Bill of Rights coexisted with chattel slavery. So we can’t say that a country will respect human rights more just because it has rights written into its constitutional document.

What we can say for sure is that any written bill of rights transfers power from voters and governments to judges. Constitutional provisions do not interpret themselves: judges do. Almost all the difficult questions can be considered as conflicts between one group’s rights and another group’s or individual’s. A written bill of rights means that more of the decisions as to whose rights will prevail in a particular situation will be made by judges and fewer by elected politicians.

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About the Author

Gareth Morley
Gareth Morley is a litigator with the British Columbia Ministry of Attorney General. (All opinions expressed are his alone, and do not reflect the views of the Ministry of Attorney General.)


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