The Supreme Court is an apex appellate court; its function is to give the final word solely on points of law, and certainly not to conduct a de novo trial, repeating the evidence-gathering work of the court of first instance. So what exactly is the point of the week-long jamboree and its parade of interveners? Are there novel and pertinent social or legal facts to be studied?
It is almost, as Sarkonak observes, as though the court were taking the work of a parliamentary committee onto itself — as if it were revving up to legislate in an area with profound social and political implications, in precisely the way parliamentary deputies would be traditionally expected to.
The Government of Canada is encouraging the Supreme Court to, on its own motion, capture new and previously unimagined powers for itself. It proposes that the court should be able to block some uses of the notwithstanding clause because, if renewed by successive governments often enough, they might create “irreparable impairments” to the enumerated rights and freedoms suspended. (Look into your crystal balls!) The government also invites the court to allow idle “declarations of invalidity” on statutes that use the clause: it proposes, in fact, that the court should be permitted to do this for explicitly electoral purposes, because “voters and their representatives are not always necessarily in a position to determine for themselves whether a law respects Charter rights and freedoms.”
