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 Title

Supreme Court Usurps Parliament's Authority

 Synopsis

Selected from debate in the Canadian Senate on a point of order raised by Senator Cools, who argues that the Supreme Court does not have the right to instruct Parliament to change or create law.

 Author

Anne Cools

 Author Notes

Senator, family law activist. Cools was appointed to the Senate in 1984 by Liberal prime minister Pierre Elliot Trudeau after years of activism in social services, particularly womens' support services. After field work and teaching in social work, she became a leader in the development of battered womens' shelters across Canada and in advocating better support for troubled families. As many of the supports she advocated and helped to develop have been coopted by radical feminists, Ms. Cools has become a fierce critic of them and their programs, and a powerful voice for balance and restraint in Canadian family law.

 Essay - 11/20/1997

Honourable senators, I rise on a point of order. I assert that Bill C-16 cannot be a bill nor a question for consideration and vote in the Senate. It is not consistent with the Rules of the Senate of Canada, formerly titled the lex et consuetudo parliamenti, the law of Parliament. There is no rule, custom, or usage of the Senate, or of the law of Parliament, which imposes on senators any duty or obligation to consider and vote upon any question which is an order, or arises from an order, from any other court in respect of the Senate's exercise of its own privileges.

As a matter of fact, the law of Parliament prohibits any such consideration and prohibits the introduction of any such bill in the Senate. The law of Parliament has no provision for any such order of the Supreme Court of Canada, in any form, to be placed before the Senate for its approval. The law of Parliament describes and regulates our internal rules, principles, and internal proceedings. It resists encroachment or subordination from another court because the law of Parliament has its origins in Parliament's own powers as a court - the judicial powers of Parliament. Parliament is the highest court of the land. The ancient laws, customs and usages of the Parliament of the United Kingdom, the ancient laws of Parliament, were received into Canada in the Constitution Act, 1867. They are inherent and necessary to the functions of Parliament.

Honourable senators, a bill is not just a particular form of procedure. A bill is a proposal in search of Parliament's approval. Any proposal, in seeking approval to become an act of Parliament, must contain an inherent integrity and an inherent worthiness. It must be, inherently and honestly, a worthy parliamentary action and worthy of the inherent law of Parliament. Such proposal must contain an inherent respect for, and an inherent conformity to, the rules, principles and laws of Parliament, whose very support the proposal seeks. In addition, such proposal must be free of any inherent threat to or coercion of Parliament. Any proposal which is disloyal, disobedient, subversive, or contemptuous of the law of Parliament or of Parliament itself, and similarly, any proposal which deceives, misleads, or coerces Parliament, is a proposal which will have the effect of corrupting the procedural form in which the proposal is presented. Any such proposal, however formed procedurally, by its very compromised and flawed nature would cause a corruption in the employed procedure, and cause a corruption to that proceeding in Parliament.

Honourable senators, Bill C-16 has been presented under threat. If this bill is not passed, as per Supreme Court order, by November 22, 1997, the chaotic consequences to the law enforcement and the criminal justice system would be grievous, a chaos created by the Supreme Court. The Attorney General's office in British Columbia informed in June that in their province alone there were 2,757 cases affected. In short, some 3,000 arrests, some 3,000 cases of arrested suspects, are jeopardized. I do not know the total number for the country. On May 22, 1997, in the case of Regina v. Feeney, the Supreme Court, in a five-to-four decision, set aside Michael Feeney's conviction for second degree murder, ruling that his Charter rights had been violated. In June 1991, in Likely, British Columbia, a few hours after he had brutally murdered 85-year-old Frank Boyle, Feeney was arrested wearing a T-shirt splattered with his victim's blood. Feeney was convicted of second degree murder by a judge and jury. This conviction was upheld unanimously by the province's Court of Appeal. On appeal of the Feeney case to the Supreme Court, the Supreme Court made a new and quantum leap in its judicial activism. Judicial activism describes the assumption of legislative functions by judges, who claim reliance on the Charter of Rights for their bold reshaping of Canadian public policy. This judicial activism is a political power seeking dominion and sovereignty. The Supreme Court reversed its own judgement as it had ruled in the 1986 Regina v. Landry judgment. They overturned the law that law enforcement personnel have obeyed loyally. I note that 1986 was the Charter era, and that the then majority decision never suggested that the judgment was inconsistent with Charter values.

Further, the Supreme Court made this dramatic reversal of law without notification to, and absent of, and representation from all the Attorneys-General of Canada on the consequences for criminal justice and law enforcement in Canada.

Supreme Court Justice John Sopinka has ruled in the Feeney case that a novel and additional warrant, not previously required, never previously legislated, would now be required to make an arrest in a dwelling house. The fact that Canada's Criminal Code did not require or legislate this additional warrant was inconsequential to him, as was the fact that the enactment of statue law, the Criminal Code, is the singular and exclusive jurisdiction of the Parliament of Canada. Without any jurisdiction and constitutional authority legislatively, Mr. Justice Sopinka ruled:

If the Code currently fails to provide specifically for a warrant containing such prior authorization, such a provision should be read in.

Such legislative enactments are exclusively the privilege and powers of Parliament. Parliament's action or inaction is Parliament's business, and between Parliament and the electorate. That was May 1997. In June 1997, British Columbia's Attorney General's lawyers brought an application to the Supreme Court for a stay of their court order:

...for the purpose of obtaining a six-month transition period before the new warrant requirement would come into effect, in order to allow Parliament the opportunity of enacting appropriate legislation.

The courts have no role or power to adjudicate legislative inaction or legislative silence, and no legal or constitutional authority to order Parliament to pass a law. Further, Parliament is not a suppliant to the Supreme Court of Canada and is not bound by the November 22, 1997 time frame set by the Supreme Court order.

Honourable senators, Parliament's powers, privileges, and immunities are threefold. They are legislative, judicial and administrative. The most evident of these powers is the legislative powers and functions. Parliament, as a representative body, enacts laws in its wisdom, and answers only to the electorate for their enactment or failure to enact. Parliament does not answer to the Supreme Court, and is not reviewable, for its legislative inaction. Mindful that the Canadian judiciary is now divided into the judicial activists and the traditionalist judges who limit themselves to interpreting the law, I come now to the heart of the matter. This is best articulated in St. Augustine's words, the libido dominandi, the lust for dominion, the lust for legislative and executive power of the judicial activists.

Honourable senators, I move now to the issue of judicial and Charter review of the exercise of Parliament's privileges and the Supreme Court of Canada's own judgments on Charter review of Parliament's exercise of its inherent privileges. The courts, including the Supreme Court, have held, as has the Speaker of the Senate, that the Charter does not govern the exercise of legislative privileges. I refer now to the 1993 case of New Brunswick Broadcasting Co. v. Nova Scotia (Speaker, House of Assembly) known as the Donahoe case.

Arthur Donahoe was the Speaker of the Legislative Assembly of Nova Scotia. He was sued by the CBC, in his capacity as a member and Speaker, for exercising legislative assembly functions, as we do daily in committee. Eager judicial activist judges, at the trial level then the appeal level, ruled that not only could Donahoe be sued, but that other individual members of the assembly could be sued. In Donahoe, the basic question was whether the courts have an active role to play in supervising legislative proceedings and legislative functions. In short, do the courts have a Charter review jurisdiction to supervise the conduct of legislators in the legislative process prior to the enactment of legislation? In this Donahoe decision, Justice Beverley McLachlin ruled that:

The Charter does not apply to the members of the Nova Scotia House of Assembly when they exercise their inherent privileges, since the inherent privileges of a legislative body ... enjoy constitutional status.

Justice McLachlin added:

Having concluded that the Assembly had the constitutional right to do what it did, it follows that the Charter cannot cut down that right, on the principle that one part of the Constitution cannot abrogate another part of the Constitution.

She continued:

The Parliamentary privilege of the British Parliament at Westminster sprang originally from the authority of Parliament as a court. Over the centuries, Parliament won for itself the right to control its own affairs, independent of the Crown and of the courts.

In concurring, Chief Justice Antonio Lamer wrote:

How might the legislature exert its power over individuals in a way which potentially calls for Charter review? ... McIntyre J. expressed the opinion that: `Legislation is the only way in which a legislature may infringe a guaranteed right or freedom.'

I repeat: Legislation is the only way in which a legislature may infringe a guaranteed right or freedom.

Chief Justice Lamer continued:

As elaborated in detail earlier in this judgment, the courts have long maintained a `hands off' approach to the exercise of parliamentary privilege, particularly when it is directed toward maintaining control of the internal proceedings of the House. This approach fosters the independence of the legislative and judicial branches of our government from one another. As Iacobucci C.J. pointed out in a different context, `the review of parliamentary proceedings is not a matter to be taken lightly given the history of curial deference to Parliament and respect for the legislative branch of government generally': ...

Honourable senators, that statement from then Federal Court Appeal Division Justice Frank Iacobucci was made when he overruled Trial Division Justice Barry Strayer's ruling that the court had jurisdiction of judicial review over the Senate and over the Senate Committees' functions. Justice Strayer had ordered that individual senators, as members of the Senate committee, could be sued. These individual senators included then Senate Speaker, Senator Guy Charbonneau, Chairman of the Senate Committee, and Senator Roméo LeBlanc, now Governor General of Canada. Chief Justice Lamer continued in Donahoe that:

The place and importance of legislative privileges in our political life and the long-standing practice of judicial non-interference have been reviewed at length earlier in these reasons.

Chief Justice Lamer added:

The legislation that the provinces have enacted with respect to privileges will be reviewable under the Charter as is all other legislation. However, it does not follow that the exercise by members of the House of Assembly of their inherent privileges, which are not dependent on statute for their existence, is subject to Charter review.

The Supreme Court's Feeney judgement, by the surreptitious and hidden reversal of its own judgement in the Donahoe case, is a blatant attempt to subjugate the exercise of Parliament's privilege to freely pass or not pass legislation to the Supreme Court's dominion. The Court did this without a single representation from Parliament and now secures Parliament's complicity to it.

Honourable senators, now to the Senate's position in the Donahoe case. The former Speaker in the Senate, Senator Charbonneau, the House of Commons Speaker, John Fraser, and several Speakers of provincial assemblies had intervened and made representations to the Supreme Court. Former Senate Speaker Charbonneau asserted in his 1992 factum to the Supreme Court, that the framers of the 1982 Charter of Rights and Freedoms did not subordinate the exercise of the Houses of Parliament's powers and privileges to Charter review by the courts. He asserted the contrary, that the clear language of the Charter, Section 32 limits judicial intervention to a consideration of the legislative product - that is, legislation. Senator Charbonneau asserted strongly that the framers of the Charter did not intend to create a new supervisory jurisdiction where none existed before in the courts. Senator Charbonneau wrote in his factum:

Jurisprudence in Canada and the United Kingdom shows that courts have consistently denied any jurisdiction to interfere in the workings of the Houses of Parliament and in the provincial legislative assemblies. The principle was recognized by this Court in Re Resolution to Amend the Canadian Constitution, [1981] ...

It is unnecessary here to embark on any historical review of the 'court' aspect of Parliament and the immunity of its procedures from judicial review. Courts come into the picture when legislation is enacted and not before (unless references are made to them for their opinion on a bill or a proposed enactment). It would be incompatible with the self-regulating - `inherent' is as apt a word - authority of Houses of Parliament to deny their capacity to pass any kind of resolution. Reference may appropriately be made to art. 9 of the Bill of Rights of 1689, undoubtedly in force as part of the law of Canada, which provides that `Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament'.

Senator Charbonneau insisted that:

It is clear that no judicial review jurisdiction was conferred by the Constitution Act, 1982, including the Charter where none previously existed. (Mills v. The Queen, [1986] ... per McIntyre J.) ...

In fact, the jurisdictional boundaries created by Parliament and the Legislatures are for the very purpose of restraining the courts by confining their actions to their allotted spheres.

Honourable senators, for many years now Mr. Justice Sopinka, in his judicial opinions, has stated that Parliament's exercise of its privileges are subject to the court's Charter review, but his opinions have not prevailed. In Regina v. Feeney, his opinion has now prevailed. In dissenting from him, Justice Claire L'Heureux-Dubé's offered a searing assault on his reasoning and actions.

Honourable senators, Bill C-16 is an impropriety and should not be before us. It is inherently so repugnant to the inherent law of Parliament as to cause the corruption of these proceedings in Parliament, consequently to impeach the procedure and the proceeding itself. Bill C-16 is the product of a newly formed cooperation between an unbridled executive and an interventionist court. The Charter denies the courts' judicial supervision and judicial review over Parliament's exercise of its lawmaking powers precisely because the Supreme Court Justices, in this Chamber, under Royal Prerogative, as deputies of the Governor General of Canada, give Royal Assent to legislation. That Mr. Justice Sopinka has reviewed Parliament's wish to pass or not pass a statute, and has made an order that effects a command to Parliament to enact a statute by his deadline as ordered; that Justice Sopinka could come to this Chamber to give Royal Assent to this same Bill C-16, is an exercise of power unknown to Canada's constitutional Monarchy and, more important, unknown to Canadian Parliamentary history and practice and Canada's Parliament with its laws and customs.

Such coercion is contrary to the law of Parliament because the law of Parliament is the law that defends parliament and representative institutions against encroachment from the courts and from the Crown or Executive.

Honourable senators, there are no precedents for what has happened here. The Supreme Court of Canada did not declare any law or any statute to be invalid. It is quite a different state of affairs. I have all the documents here if anyone is interested in them.

...

We should not be lulled into believing that the Supreme Court is doing something here that it has been doing for a few years. Let me make it abundantly clear. The Supreme Court has struck down no law. It has declared no law to be invalid. They have pulled something out of the blue and decided that it should become statute law. The dissenting judgment of Madam L'Heureux-Dubé should be read by all senators.

On another point, when the Supreme Court of Canada took action, they informed no one in government and no one in Parliament. Honourable senators may be unaware, but in the case of Donahoe, or in any other related case, the provincial judicature court acts - in Ontario, for example, it is called the Courts of Justice Act - have a provision that if any subject-matter is coming before the courts which is of concern to the Attorneys General of the provinces, the parties - and I believe the courts are also compelled although I am not sure - must notify the Attorney General that there is a matter proceeding which is of interest to the Attorneys General.

There is no such provision in the Supreme Court of Canada Act. The Supreme Court of Canada has no inherent jurisdiction. The Supreme Court of Canada is a creation, a creature of Parliament. The Supreme Court of Canada Act contains no provision which imposes upon them any responsibility to inform any one. Therefore, on May 22, 1997, midstream of an election, when the Supreme Court treated a major change in the policy of Canada as a private matter and ruled, basically, to set aside a conviction, they did not inform a single Attorney General - never mind Parliament - as to what was happening.

Honourable senators, I have before me the application from the Attorney General of British Columbia. One need only look at the application, dated June 17, to discover that they are pleading with the Supreme Court of Canada to stay on its own ground and leave the business of making laws to the Parliament of Canada.

This is a quantum leap by the Supreme Court in this declaration, a particular leap by which it is basically attempting to retrace its steps and reverse everything that has been said in the past. Currently, there is no section in the Charter that gives the Supreme Court of Canada the authority or the power to act as it did in Feeney.

If we could refer ourselves to the statements and actions of our own former speaker, Senator Guy Charbonneau, we would see clearly that that was the process and those were the principles that he upheld.

I have raised a point of order. My point is that the rules of this place, which are part and function of the ancient practices of the law of Parliament, do not permit what is happening.

A bill is coming before us for our approval that is disordered and out of order. I honestly think we will soon see the day when every individual senator here will be sued for anything he says or does on any legislative issue. I urge senators to look at this matter with much seriousness and, frankly, to dismiss the nonsense, the public relations and the communications exercises of the government.

I can tell honourable senators that the Attorneys General of the provinces across this country are disturbed by this measure. Anyone reading carefully the judgment of Mr. Justice Sopinka will see that it reads as though the policemen are the culprits, that somehow or other Michael Feeney is sacred and innocent, even though he was found splattered in blood just hours afterward, and that something terrible has been done to him by the police.

In addition, Justice Sopinka stigmatizes the police forces of this country, as well as the criminal justice system. Those are not just my words. They are found in the submission of the Attorney General of British Columbia.

It is a travesty of justice that anyone here would attempt to defend that it is lawful for the Supreme Court of Canada, on a whim and a wish, to throw the entire system of criminal justice into chaos and disarray without even a word or representation from anyone. That is beyond my comprehension.


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