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March 9, 2015

The Supreme Court of Canada has a responsibility not only to interpret laws, but also to chuck laws that are plainly unconstitutional onto the garbage heap. The court has done this throughout Canada's history, in one notable case radically redefining the relationship between the federal and provincial governments.

The court's ability to overturn laws gained wide expansion, however, with the Constitution Act of 1982 and its Charter of Rights and Freedoms. If, in the early years of the charter, the court prudently used judicial restraint, that virtue now seems to have been tossed to the four winds.

The reasoning behind last month's decision overturning the country's laws against assisted suicide is so tortured and illogical that it is difficult to avoid the conclusion the court threw out the existing law simply because it desired a more permissive approach.

To take but one example: The court decided allowing assisted suicide would uphold the right to life. Why? Legalizing this procedure would deter people from killing themselves earlier in their illnesses because they would no longer fear that they would lose the ability to take their own lives once their illnesses became further advanced.

Judicial restraint is nowhere to be found in this decision. The Supreme Court overturned its own 1993 ruling because it believed circumstances had changed. But shouldn't such a decision fall within the purview of the elected Parliament, a Parliament which several times

rejected bills that would have permitted assisted suicide?

The assisted suicide decision is not the only recent Supreme Court ruling that ought to stir public concern. It has rejected a federal government appointee to the court as unsuitable; it has given RCMP officers the right to unionize; it has given public sector employees in Saskatchewan, even those performing essential services, the right to strike; it has overturned the country's prostitution law and told the government to write a new one; it rejected federal government proposals for Senate reform.

Whatever one thinks about those particular decisions, the court is clearly showing little restraint in using its power. As to the Senate, the Harper government argued that it was elected with a mandate to reform the body. In fact, it was a central plank of the Conservative platform.

Federal and provincial governments have the power to invoke the notwithstanding clause which would override a Supreme Court decision for five years and which could be renewed every five years indefinitely. Elected officials, especially at the federal level, have been notoriously reluctant to use the notwithstanding clause.

However, if political power is to remain in the hands of the people's chosen representatives rather than usurped by an unrestrained Supreme Court, the notwithstanding clause may have to be used with much greater frequency.