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Even in the High Court, Majority Rules

Canada's chief justice admits popular opinion affects Supreme Court decisions--including the one that overturned the country's abortion law 10 years ago

BY Mike Mastromatteo

April 05-11, 1998 Issue | Posted 4/5/98 at 2:00 PM

 

TORONTO—Canadian Catholic and pro-life organizations are shocked by the top court official's admission that public opinion plays a role in important legal decisions.

Speaking at the Faculty of Law of the University of Toronto in February, Antonio Lamer, chief justice of the Canadian Supreme Court, said popular opinion was a factor in his decision 10 years ago to overturn Canada's former abortion law. This despite Lamer's personal opposition to abortion.

“Had you asked me at a hearing if I was for or against [abortion], I would have said against,” the chief justice told his University of Toronto audience. His comments suggest that despite the justice system's claims of impartiality, majority opinion plays a role in determining even the most basic legal considerations.

Lamer was responding to a question about the benefits of a parliamentary committee reviewing appointees to the Supreme Court. His comment about public opinion playing a role in legal decisions was his way of arguing against such review committees.

Lamer was appointed to the Canadian Supreme Court in 1980 and became chief justice in 1990. He was among the majority of justices who on Jan. 28, 1988, ruled to strike down the country's former abortion law on the grounds that it violated women's security of person guarantees.

The chief justice indicated the basis for his decision to reject the former abortion law was influenced by public opinion.

“My reasoning is that unless you have a vast majority of people who think something is criminal, you should not make it a crime,” he said.

Canadian pro-life supporters have long intimated that Supreme Court rulings are not immune from partisan considerations. Nonetheless the Lamer revelation is dismaying to Catholic groups and pro-life organizations.

The Canadian Conference of Catholic Bishops has reserved comment on the Lamer revelation. However, Tom Langan, president of the Catholic Civil Rights League (Canada), suggested the Lamer comments reflect the “relativistic” approach to the administration of justice.

“There is little meaningful discussion based on principle and natural law anymore, and that leaves even our best judges in a difficult position,” Langan said. “Any justice attempting to make a ruling based on personal belief or principle, would have a hard time justifying that ruling in our pluralistic society.”

Canadian pro-life officials meanwhile are less reserved in their criticism of Lamer's comments.

“Chief Justice Lamer's decision in the abortion law case of 1988, based on what he perceived to be the popular will, is a blatant misuse of power on his honor's part,” said Mary Ann Miller, president of Alliance for Life Ontario. “The whole exercise of having a trial on the abortion issue at the time was to bring hard evidence from both sides to an appointed judge who would weigh the evidence and make a fair decision. That he lacked the courage or the will to do so has set a precedent for all cases brought to the Supreme Court involving life issues.”

Miller said Lamer's attitude will serve to erode respect for the Supreme Court in Canada.

Attorney Gwen Landolt of Toronto, national vice-president of REAL Women of Canada, called the Lamer comments “truly astounding.” REAL Women of Canada is a national pro-life organization espousing a traditional role for women and families.

“Now the mask is off the Supreme Court,” Landolt said. “We all suspected that the justices were making political, rather than legal decisions, but now we have the chief justice more or less confirming it.”

Landolt agreed that the Lamer admission will likely cause greater cynicism among Catholics and pro-life supporters with respect to the justice system.

“[The 1988 abortion law ruling] was a major life and death decision and it was influenced by one man's perception of popular opinion,” Landolt said. “We have to wonder now on what other issues will he conduct his own private poll before making a ruling.”

Landolt has monitored Supreme Court behavior since the enactment of the 1982 Charter of Rights and Freedoms in Canada. She said the Charter, which allows the Supreme Court to rule on the constitutionality of Canadian law, in effect leaves Parliament subservient to the courts.

Other commentators across the country have been equally critical of Lamer's revelation. Many believe the comments confirm pro-life suspicions about the Supreme Court, particularly its tendency to overturn long-held values and traditions in the face of new and trendy issues. The Lamer comments also give credence to criticism that the Supreme Court has usurped Parliament's law-making prerogative.

Paul Schratz, editor of a British Columbia Catholic newspaper, echoed these views in a recent editorial. “In the case before the Supreme Court in 1988, at least one judge admits he helped kill the law—not because he considered the law unconstitutional (the usual reason for striking down legislation these days), but because he felt the majority of Canadians were opposed to it.”

Schratz also expressed surprise at Lamer's unique interpretation of the function of a Supreme Court justice.

“Somewhere the chief justice got the impression that it was his job to do what the majority of Canadians want,” Schratz said. “Where did he acquire the notion, let alone the certainty, that he is qualified to know what the majority want?”

At least one observer, however, believes there may be some justification for Lamer's citing public opinion as a factor in certain legal decisions.

Iain Benson, a senior legal researcher with the Center for Renewal in Public Policy, said “consensus” is an important component for the Supreme Court in making legal determinations under the Charter of Rights and Freedoms. The Center for Renewal in Public Policy is an Ottawa-based forum that provides critiques of selected Supreme Court decisions.

Benson cited a recent court ruling that found community standards to be an acceptable yardstick in regulating some aspects of public policy, such as obscenity.

“Despite the apparent primacy given to the views of individuals, the court has held that the views of the community could form the basis of constitutionally acceptable law, despite the limits on individual autonomy in the area of obscenity,” Benson said.

He added, however, that the Supreme Court remains inconsistent in its attitude toward the significance of popular opinion on legal decisions. “This is because [the justices] are insecure about the relationship between morality and law,” Benson said.

Mike Mastromatteo writes from Toronto, Canada.