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Page 6 May 30, 2016 • Law TiMes www.lawtimesnews.com COMMENT ©2016 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, com - pleteness or currency of the contents of this pub- lication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. 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NDP interim leader Thomas Mulcair has been the loudest in his near-daily demands, but it points to a dangerous trend developing in the way our elected officials view their jobs. In particular, this desire to outsource tough policy deliberations to the top court threatens to turn the dialogue between Parliament and the courts into a game of Mother May I? There is a long history in this country of legislators refusing to take stands on tough "moral" issues until they need to be forced by the courts, whether it's abortion, gay rights, or same-sex marriage. Medical assistance in dying is no dif- ferent — society has been moving on, but legislators refused to even discuss the top- ic, voting down a Bloc Québécois bill on the topic twice and considering the mat- ter closed. The Carter decision has forced Parliament to revisit the topic properly for a change, and MPs are doing everything they can to drag the process out, demand- ing further extensions from the Supreme Court and talking out the clock — all to avoid having to make a tough choice. There is a time and a place for refer- ence questions to the Supreme Court of Canada. The Senate reference was a per- fect example of a government that was attempting to craft legislation that ran up against the amending formula in the constitution, and after years spent avoiding the inevitable, the question was finally asked. They got clarity — any reform of the Senate, aside from prop- erty and financial require- ments for appointment, would need to use the amending for- mula of seven provinces repre- senting 50 per cent of the population; ab- olition would require unanimous consent of the provinces. But trying to put tough social or poli- cy issues onto the backs of the Supreme Court is a clear dereliction of duty by our elected officials. It's not the court's place to determine public policy. In fact, putting it on the court politicizes it and undermines the work it has to do when it comes to determining the constitutional validity of those laws af- ter the fact, because now it's being asked to determine the validity of those laws before they exist in the real world, where there is no evidence to weigh. It becomes the opin- ions of nine judges, who, let's face it, are not an adequate representation of the diversity of Canadian society. "Going in hand to the court to see if it can do it first means that we'd be closing out any opportunity for dia- logue, even if dialogue is quite rare as it is," says Emmett Mac- farlane, a University of Water- loo constitutional scholar. Macfarlane says there's not much to the idea of dialogue in post-Charter Canada, which makes it all the more puzzling why our MPs would be keen to further do away with their own ability to shape policy and legislation and have the courts do it for them. "What we have tended to see in the his- tory of the Charter and constitutional law in this country is generally the legislature and politicians deferring to the policy pre- scriptions that the courts set out in some Charter cases," Macfarlane says. "There have been, though, occasional instances where we have seen parliament successfully push back against court de- cisions and ultimately get its way — this happened in the 1990s with issues around rape shield legislation — but that's been quite rare." It could be argued that the previous Harper government has engaged in in- stances of pushback with the court. The current government seems to be digging in its heels and pushing back against the court with both C-14 and the RCMP unionization legislation. This pushing back against the court is the other reason why demands for a reference should be seriously cautioned against, because not only is it looking to undermine the legitimate role of the gov- ernment in enacting public policy, but it's a further attempt to politicize the courts by using them to fight your battle when you lose at politics. Not every policy disagreement is a breach of the Charter, and the Supreme Court may yet determine that a future challenge of C-14 would indeed be con- stitutional. But it needs to be tested in the real world before that determination can be made. Parliament has a job to do, and parlia- mentarians should take their authority to make decisions seriously. At the same time, parliamentarians need to be able to be held to account for decisions, rath- er than putting them off to the Supreme Court in order to shield themselves from that accountability. The court is not there to grant permis- sion to MPs to enact policy — it's there to determine if that policy is Charter- compliant in the real world. Confusing the two will only further undermine confidence in our political and legal systems. LT uDale Smith is a freelance journalist in the Parliamentary Press Gallery. The Hill Dale Smith Dale Smith Terrible trickle-down Bureaucracy has a way of deadening the soul to the very real and very serious consequences of denying each person the right to a fair and timely court hearing. There are currently nine judicial vacancies in Ontario's courts — seven in the Superior Court, one in the Court of Appeal, and one in Family Court. As Law Times reports, these delays have serious con- sequences. Judicial vacancies mean a longer wait for court hearings. Spinoff effects include people charged with offences sitting in custody longer, families immersed in chaotic and emotionally messy legal disputes longer, and lawyers working unpaid overtime in drawn-out cases. Ontario lawyers are calling on Minister of Justice and Attorney General of Canada Jody Wilson-Raybould to appoint new judges to fill the vacant spots. The complaints are hardly unique to Ontario — judges from Quebec and Alberta have aired their grievances about shortages, too. They're right. What's the holdup? This is the statement provided by the spokesman for Wilson-Raybould: "We have committed to a review of the entire judicial appoint- ments process, based on the principles of openness, transparency, merit and diversity. This review will achieve a greater degree of di- versity within the Canadian judiciary, so that it will truly ref lect the face of Canada," it read. "I will work with interested stakeholders, in- cluding the judiciary, and Canadians on these appointments. "In the interim, our government is moving forward on meas- ures that will facilitate appointments to fill highly pressing judicial vacancies as soon as possible." Explanations of what's to be expected to address the vacancies remain few, and the little informa- tion available does not allay the concerns of those most inconvenienced and affected. The lack of specifics is troubling, and there is no clear direction about what the legal community can expect next. Get on with it. LT

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