Tuesday, February 22, 2005

Canada: Love it or Leave it!

I’ve been wondering around southern Ontario this past week. First, some lectures at Wilfred Laurier University (on “secularism”) and then meetings with various folks in Toronto. What is interesting is that amongst the lawyers I have known - - some of them for over 20 years, there is a deepening anxiety about what we could call the legal culture of Canada. This concern is shared from coast to coast in Canada.

Most of my friends no longer believe that the law is functioning as the law should. They believe that the law has ambitions beyond itself. Law is becoming the means of bringing about the just society. The smarter the lawyer, the more they recognize this as something well beyond what the law should do or seek to be.

Judges in recent years, and their back-up singers, the academics and lawyers who maintain the plausibility structure of the existing system, have said that the relationship between the courts and the legislature is a “dialogue.” Fine then; they must support Section 33 - - the notwithstanding clause - - which allows a government to overrule (for a limited time) the decisions of the courts.

For only this would maintain a “dialogue” of “back and forth.”

Surprise! Many of those who view law as the means of maintaining social ordering and bringing about “the just society” do not want “dialogue” - - they want a monologue and the court shall tell us what should be.

Canada. Love it or leave it; or, better yet, try and change it.

Iain T. Benson ©