Against Judicial Activism: The Decline of Freedom and Democracy in Canada
by Rory Leishman (McGill-Queen’s University Press, 2006. 310 pp.)
Conservative M.P. Maurice Vellacott found himself in the middle of a storm of controversy after he suggested this past spring that Supreme Court justices play god with the law. He told CBC-TV that, “Beverley McLachlin herself actually said that when (Supreme Court judges) step into this role, all of a sudden there’s some mystical kind of power that comes over them, by which everything that they ever decree then is not to be questioned. They take on these almost god-like powers. And (McLachlin) said that herself. I didn’t say that.” The chief justice denied making such comments. In support of his criticism of her, Vellacott quoted from a lecture she gave on Dec. 1, 2005, but toned down his remarks: “I may have given the impression that in that speech she expressly said that she had ‘god-like powers.’ I acknowledge that Ms. McLachlin did not literally use those words. I regret the misunderstanding that was created. I extend my apologies to her in this regard.”
Nevertheless, he was forced to resign his position as chairman of the Commons’ aboriginal affairs committee; he issued a statement blasting the federal Liberals for singling him out for criticism after he suggested that Supreme Court members play god with the law. The Canadian Bar Association had called for his resignation and Prime Minister Stephen Harper distanced himself from Vellacott’s comments, saying they did not represent the views of the government.
However, criticism of judicial activism is nothing new; the only legitimate complaint about Vellacott is that he used extreme language. In 2003, the Life Ethics Information Centre published a book edited by Father Alphonse De Valk entitled, Judicial Activism: A Threat to Democracy and Religion. Its 13 chapters were written by journalists, academics and lawyers, and they contained very severe criticism of the judges: “Judicial activism: justice denied, democracy defied,” “Chief Justice McLachlin overthrows parental rights,” “Parliament: from Christian virtues to judicial values.” A summary of the book’s contents on the back cover says that its essays “trace the success of the homosexual community in achieving legal, financial and even constitutional advantage by means of the courts, rather than Parliament. In the process, social, cultural and religious liberties are being sacrificed by politically correct judges in order to bestow equality on a way of life which undermines the social order.” In other words, Vellacott’s criticism of judges’ arrogance was nothing he needed to apologize for.
Chapter Five of the Life Ethics book contains two separate discussions by Rory Leishman and his examination of the topic have now been expanded into a book over 300 pages long, Against Judicial Activism: The Decline of Freedom and Democracy in Canada. The book purports to show “how Canadian courts have been blatantly making laws under the guise of judicial interpretation – and usurping the legislative function that properly belongs to Parliament and the provincial legislatures.” It may very well be not just the last word on the subject, but the definitive discussion of it.
University of Western Ontario law professor emeritus Ian Hunter trenchantly observes, “Freedom of religion has been interpreted by the Supreme Court, since the landmark decision in Bib M. Drug Mart, to mean freedom from religion.” Supreme Court Justice Mary Saunders has actually said this right out: “Freedom of religion includes freedom from religion.” Leishman ends his introduction by saying that the distortion of human rights and fundamental freedoms in the Charter era “threatens all Canadians.” In a chapter on judicial activism versus the rule of law, he points out that in his authoritative Introduction to the Study of the Law of the Constitution A.V. Dicey, writing in the 1880s, could not conceive of an arbitrary judge. He could not imagine that an appeal court judge in a common law country would routinely subvert the rule of law by assuming “wide, arbitrary or discretionary power” to impose radical reformulations of the law.
In May 2002, the Saskatchewan Human Rights Tribunal ruled that Bill Whatcott had violated the provincial Human Rights Code by distributing flyers denouncing homosexuality as sinful and harmful to health. He insisted that his accusations were true and quoted an authoritative book by a medical expert in support. The tribunal rejected this argument, on the ground that the Human Rights Code does not make any provision for truth as a defence against offending homosexuals. This omission is typical of Canada’s human rights codes. Whatcott was ordered to pay $17,500 in damages to the complainants. Instead, Whatcott and fellow members of a group called the Christian Truth Activists stuffed Saskatoon mailboxes with flyers entitled, “Sodomites and the Saskatchewan Human Rights Commission.” If he loses on appeal, he may well wind up in jail; the important thing is that the freedom of expression guaranteed under the Charter will not protect him.
In a long chapter, “Trust Not in the Charter,” Leishman offers further compelling evidence for his invocation. Another explains: “How Human Rights Commissions Suppress Our Freedom.” A chapter, “Against Judicial Attack on Christians,” concludes with the statement by Cardinal Marc Ouellet, Catholic primate of Canada, that, “A kind of climate is developing in which people no longer dare say what they think. Even from the pulpit, we feel threatened if we recall the sexual morality of the church.” Justice Mary Saunders of the B.C. Supreme Court perversely argues that, “Freedom of religion includes freedom from religion.”
The prosecution’s case against the judicial activists is concluded with a chapter entitled, “The Chief Defends Judicial Supremacy.” In an article in Policy Options, Chief Justice Beverley McLachlin wrote that the law develops through an accumulation of precedents. The Constitution is not something forever fixed; it is a living tree that admits of growth. New circumstances are brought before the courts and if a careful analysis reveals that the old law no longer reflects what is considered fair and appropriate, it is modified. But the court may not be in a position to appreciate fully the economic and policy issues underlying the choices it is being asked to make. Major changes are best accomplished by the legislature, the elected branch of government. Where revision is major, the courts should proceed with “great caution.” Rory Leishman argues that they should not proceed at all – let them leave legislating to legislators. But the court’s 1998 ruling in Vriend rewrote the Alberta Human Rights Act, and in the ruling in M. v. H. that “spouse” included same-sex couples, the Supreme Court undermined literally hundreds of federal and provincial statutes. Blockbusters like this render denials of judicial activism useless.
In an attempt to limit the adverse effect of M. v. H. on marriage and the natural family, the Canadian Alliance sponsored a resolution in the House of Commons in June 1999 declaring that marriage was, and should remain, the union of one man and one woman to the exclusion of all others. With the backing of the Liberals and the Conservatives, the resolution was adopted by the overwhelming margin of 216-55. So the people had spoken clearly, through their elected representatives. It only remained for the courts to tinker with this definition and ultimately destroy it.
In May 2003, the B.C. Courts of Appeal ruled that the common-law bar to same-sex “marriage” violated Section 15 of the Charter. In June 2003, a three-judge panel led by Ontario’s chief justice abruptly declared that marriage was the union of two persons. A number of other provinces followed suit, and soon the Chretien government capitulated to the courts, with justice minister Martin Cauchon introducing a bill redefining marriage. So the Supreme Court had all but mandated the imposition of same-sex “marriage” on the nation.
All the provinces have human rights tribunals and almost invariably, they take the side of homosexuals. The most notorious case was that of printer Scott Brockie, compelled to perform work for homosexual groups, which he regarded as against his religion and which other printers could easily have done. In her ruling, Heather MacNaughton said it was a matter of affirming the overriding rights of gays – their equality right takes precedence over freedom of conscience, freedom of religion and freedom of expression for all other people.
No wonder that Leishman states in his concluding chapter on reviving parliamentary democracy: “Nothing less than an epochal confrontation between Parliament and the Supreme Court of Canada can persuade activist judges and their abettors in the academy that unelected judges should stick to judging and allow elected legislators to do the law-making.”
David Dooley is professor emeritus of literature at St. Michael’s College and associate editor at Catholic Insight. .
