Judging judge

Law professor Robert Martin argues a provocative case against the Supreme Courts


Robert Sibley
The Ottawa Citizen

February 22, 2004

 

When Canada's Charter era dawned in 1983, Eugene Forsey, the country's pre-eminent constitutional authority, warned that the Charter of Rights and Freedoms would provide "a field day for crackpots ... a headache for judges ... and a gold mine for lawyers."orsey was right about the lawyers and crackpots, but he missed the mark on the judges. Rather than a headache, the Charter has allowed judges to grab the brass ring. To be sure, their lust was held in check early post-Charter years by judges who still believed in Parliament's supremacy, who thought legislatures made law and courts interpreted it. And most observers seemed to think the courts would be circumspect about using the Charter to nullify the decisions of legislatures and governments. Law professors Robert Martin and Berend Hovius, for example, initially thought the Supreme Court would "strive to ensure that the legislatures continue to bear the ultimate responsibility for determining social policy ... "
How times -- and views -- change. In his recently published book, The Most Dangerous Branch: How the Supreme Court of Canada has Undermined Our Law and Our Democracy, Martin argues that the judges make social policy and legislators fear challenging them. Canada's top court is so highly politicized, says Martin, who teaches constitutional law at the University of Western Ontario, that it has abandoned legal principles in making its decisions, preferring instead to decide matters -- such as the 1995 decision to unilaterally add homosexuals to the list of protected classes contained in the Charter -- on the basis of "values" that reflect the judges' personal preferences. Such activism not only usurps the tradition of parliamentary supremacy, but offends fundamental principles of democracy since the judges were never elected to make social policy. As Martin states: "Canada may be the first country in the world to have experienced a judicial coup d'etat."
A provocative claim, but a timely one. Last fall, a House of Commons justice committee, made up of MPs from all parties, began a review to determine whether Supreme Court candidates should be public scrutinized as they are in the U.S. And last May, when he was seeking the Liberal leadership, Prime Minister Paul Martin said: "The appointment of Sup-reme Court justices should not go ahead until Parliament has had the chance to review the appointments." At the very least, Prof. Martin's book provides the prime minister with a reminder of why he should follow through on his ideals.
Prof. Martin isn't the first to examine judicial activism, of course. The Charter Revolution and the Court Party by University of Calgary professors Ted Morton and Rainer Knopff, published in 2000, argues that an unelected judiciary serves the interests of a "Court Party" -- radical feminists, civil libertarians, activists, academics -- that attempts through litigation and media pressure to effect social changes they cannot achieve by democratic means.
Prof. Martin focuses on the Supreme Court as the high priests of this new "secular state religion," an order devoted to interpreting and shaping the law according to their "values." (Values, as the philosopher Friedrich Nietzsche noted, are nothing more than claims of power). But, he says, these "values" reflect little more than the "stultifying orthodoxy" of moral relativism and identity politics. As Prof. Martin writes: "The most reprehensible social sins in Canada today are defined by the orthodoxy as the thinking of bad thoughts. These are: homophobia, racism and sexism."
All of this, Prof. Martin charges, is inherently anti-democratic and anti-political. Too many Canadians have swallowed the idea that the sole purpose of constitutional government is protecting individual and collective rights. They forget that self-government is also a human right. "Mesmerized by human rights rhetoric and the blandishments of lawyers and law professors, Canadians have stood by quietly and meekly while the judges hijacked their country."
If Canadians want their democracy back they are going to have to stage a counter-revolution -- "a democratic struggle against the judges," as Prof. Martin says. To this end, he urges scrapping the Court Challenges program -- "it is difficult to understand why the people's money should be used to pay wealthy and privileged lawyers to attempt to increase their wealth and privilege" -- and the Women's Legal Education and Action Fund -- "the main causes of the Court's subversion are feminism and feminists." He also recommends the creation of an independent judicial commission to nominate future judges.
Most importantly, though, Prof. Martin challenges legislators to reclaim their constitutional responsibilities to represent Canadians as a whole by making a "major effort" to rehabilitate Section 33 of the Charter -- the override provision, or notwithstanding clause -- "to reassert Parliamentary control over public policy."
Now that would give the judges a headache.
Robert Sibley is a member of the Citizen's editorial board. He writes monthly on books published by university presses.


The Book: The Most Dangerous Branch: How the Supreme Court of Canada Has Undermined Our Law and Our DemocracyBy Robert Ivan Martin
McGill-Queen's University Press
285 pages. $39.95

The Ottawa Citizen