The first woman ever appointed to the Supreme Court of Canada, the Honourable Madam Justice Bertha Wilson, died this week at the age of 83. Madam Justice Wilson was perhaps best known for her contribution to the notorious (or famous) decision in the case of R. v. Morgentaler, the Supreme Court decision that effectively legalized abortion in Canada.
Wilson was able to play such a significant role in the development of this particular aspect of public policy thanks to the authority conferred upon her and her 8 unelected colleagues of the Supreme Court by virtue of the advent of the Charter of Rights and Freedoms and the power of full judicial authority. There remains much debate as to whether the Charter confers too much power on the courts. Indeed, this was an issue in the last federal election when Stephen Harper found himself in hot water for suggesting that "Liberal-appointed" judges would keep his government in check.
I remember the Morgentaler decision. I recall being disappointed because, at the time, I had some strong pro-life views. However, the decision also aroused the political science - and future law - student in me. It cause me to think about the question of the Charter and judicial review and whether or not the courts ought to have such power. I felt at the time they should not and continue to hold this view.
I have been drawn, strangely enough, into the critical legal theory camp known as the "legal realists", or those who believe that our legal system does not operate some form of social and/or political vacuum. Even Supreme Court judges cannot be free from ideological biases, as high a pedestal that we place them upon. They are learned (two syallables, Homer Simpson), educated, wise and dispassionate, but as human beings they are no less capable of being affected by their life experiences and world views as am I. Here's an excerpt from Madam Justice Wilson's decision in the Morgentaler case which I always felt betrayed a certain world view bias on her part. It certainly, at least in my estimation, involved her taking great liberties with the legal notion of "security of the person", moreso than I think the framers of the Charter might have intended:
In my opinion, the respect for individual decision-making in matters of fundamental personal importance reflected in the American jurisprudence also informs the Canadian Charter. Indeed, as the Chief Justice pointed out in R. v. Big M Drug Mart Ltd., beliefs about human worth and dignity "are the sine qua non of the political tradition underlying the Charter". I would conclude, therefore, that the right to liberty contained in s. 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting their private lives.
The question then becomes whether the decision of a woman to terminate her pregnancy falls within this class of protected decisions. I have no doubt that it does. This decision is one that will have profound psychological, economic and social consequences for the pregnant woman. The circumstances giving rise to it can be complex and varied and there may be, and usually are, powerful considerations militating in opposite directions. It is a decision that deeply reflects the way the woman thinks about herself and her relationship to others and to society at large. It is not just a medical decision; it is a profound social and ethical one as well. Her response to it will be the response of the whole person.
It is probably impossible for a man to respond, even imaginatively, to such a dilemma not just because it is outside the realm of his personal experience (although this is, of course, the case) but because he can relate to it only by objectifying it, thereby eliminating the subjective elements of the female psyche which are at the heart of the dilemma.
Do we want to trust the unelected and, thus, unaccountable with vague notions of "security of the person" and "fundamental justice" when issues as important as abortion are under scrutiny? Are these not the questions we want in the public realm, where a greater consensus might be found? I'm not suggesting that Madam Justice Wilson was wrong on the straight public policy question of abortion. However, I question whether or not it was Wilson's - or any other Judge's matter - place to have the final legal say on it.
I found myself asking these similar questions in recent years, this time with the debate on same sex marriage. Here, I was in agreement with the Liberals on one question but not with another, and in disagreement with the Conservatives on the first question, but on their side with the latter. The questions: should we, as a society, recognize and condone same sex marriage? To this, my answer is an emphatic yes. Secondly: should the Supreme Court of Canada have the final say on the matter. To this, my answer is an emphatic no. As such, I supported the Liberals in their attempt to enact legislation which recognized same sex marriage; the first ever legislative attempt to define marriage in our country's history. However, I was disappointed when they went running to the Supreme Court of Canada to get their stamp of approval, as much as I understand the necessity of such in the current legal environment of full judicial review.
In terms of the Tories, I was and remain opposed to any attempt to revert the definition of marriage to the tradtional one of "one man to one woman to the exclusion of all others". However, I support Harper in his belief that it ought to be Parliament, and not the Supreme Court of Canada, who have the final say.
Perhaps the balance we have struck in Canada is the existence of the Notwithstanding Clause which technically gives Parliament (and provincial legislatures, of course) the final say. Nevertheless, the political risks in invoking the clause render this course an unlikely one, leaving the courts to rule the roost on many questions of public policy, such as abortion.
We lost a great Canadian this week, who has made a significant contribution to public life. However, I wonder if the power vested in her and her peers ought to have been there to begin with. In doing so, have we not abdicated our obligations and our rights as a democratic society?