VICTORIA -- If nothing else, Bud Smith is candid. During a recent charter conference at the University of British Columbia, the new attorney general addressed an audience of what he called "the finest legal minds in North America" and gave them an earful. The target of his criticism was the judiciary and its ever- increasing power under the provisions of the Canadian Charter of Rights and Freedoms.
To the layman, Smith made a good case against the legal myopia and arrogance that has crept into our judicial system with the charter. His critique could not have been lost on the audience which was studded with judges and lawyers.
What bothers Smith, and should bother us all, is the gradual erosion of legislative prerogative by the courts. With the arrival of the charter, appointed judges gained the right to overturn decisions made by elected parliaments.
"Just a few years ago, matters of social and economic policy were regarded as the exclusive domain of legislators. The will of the people as expressed through elections, provided the basis for major social and economic policy decisions," Smith said. "Political give and take resolved conflicting views. The resulting decisions, laws, regulations and policies were compromises, that great Canadian art form," he said.
That's changed. Now, if judges feel that someone's rights under the charter have been infringed, they can wipe out any decision, any law, any regulation or policy that led to the infringement. The result of this, Smith says, is that Canadians are no longer able to determine their social and economic future by virtue of their free vote. There's a great deal of merit to that argument. Take Smith's example of the recent controversy over doctors' billing numbers.
Earlier this year, the B.C. Court of Appeal decided that the provincial government did not have the right to restrict the issuance of billing numbers, necessary for doctors to practice in this province. The effect of the decision was that any doctor who meets the professional criteria can now practice in British Columbia.
On the surface, that would appear to be a good thing. It certainly seems fair, which, I suppose, is why the court decided in the doctors' favor in the first place. But there are other considerations which the court did not have to deal with.
Before the court's decision, there were 6,000 doctors in B.C., all paid through the Medical Services Plan which is, of course, financed by us, the taxpayers. Since the judgement was handed down, that number has increased to 7,000 doctors. Smith estimates that each additional doctor costs the taxpayers $250,000 a year. That figure includes hospital services and prescription drugs.
When the government decided to restrict billing numbers, it believed that there were enough doctors in B.C. When the court struck down the restrictive law, it only looked at whether or notthe decision reflected the spirit of the charter.
Smith argued that the billing number issue had been debated at length in every constituency prior to the 1986 election. In other words, the matter had been an election issue, and since the voters returned the government to power, they had endorsed its position on billing numbers.
Therefore, Smith said, the court had gone against the will of the people when it eliminated billing number restrictions. It's not a bad argument, but it does have some flaws. It is in the interest of the public to have some protection against bad government decisions. If Canada had its present charter in the 1940s, there would not have been second-class citizens in this country. The Japanese would not have been put into containment camps; the Chinese would have had the right to vote.
Still, to a nation which has been governed since birth by common law, the Charter of Rights and Freedoms can be somewhat troublesome. The difference, in simple terms, is this: whereas before our basic rights consisted of everything not specifically excluded, our basic rights are now specified under the charter.
Anything not specified by the charter, such as property rights, can be considered a little shaky.
The Americans are used to living under a charter. They have defined their basic rights ever since they brought in the constitution. But Americans are also used to intensively debating any constitutional controversy. We not only tend to meekly accept court decisions, we accept the worst judicial appointment without a word of protest.
Smith predicts that will change. As the courts assume more and more power, Canadians, he says, will want to examine the people exercising that power. Twenty years down the road, judicial appointees will be grilled and occasionally rejected, just as in the United States.
"Welcome to the world of politics," he told the judges at the conference.