On March 13, 1990, the Federal Court of Appeal in Ottawa ordered the Federal Government to conduct a complete environmental assessment on a massive Alberta dam project at the Oldman river. The court decision is the result of an application by environmentalists opposing the half-built $353 million dam.

Two days later on March 15, the Supreme Court of Canada, interpreting section 23 of the Charter of Rights and Freedoms, ruled that francophone parents in Edmonton have the right to manage and control their own publicly financed French-language schools.

Judicial activism is well underway in Canada. The exclusive right of elected representatives to determine government policy is challenged more and more by a handful of judges on lifetime appointments. A look south of the border will show that this may not be a happy development.

United States

One of the more sensational American events in the U.S. was the trial (in effect) in 1987 of Robert Bork before the U.S. Senate. His nomination to the U.S. Supreme Court was rejected.

Senator Ted Kennedy, one of the most ideological of American senators and a supporter of abortion “rights”, said that Bork might have been President Reagan’s ideological choice for the Court, “but that ideology is not acceptable to Congress and the country.” He meant, of course, an ideology different from his own. He charged that Bork had made a career out of opposing landmark decisions on civil rights, the right to privacy (i.e. abortion), and the rights of women.

The head of the Senate Judiciary Committee, Senator Joseph Biden, declared that Bork’s judicial philosophy “risks dangerous consequences.” The New Yorker magazine stated that Bork had “a rigid mind,” and that his published work set forth positions “so radically at odds with the Constitution as to amount to a rigid ideological system of his own.”

The liberal establishment, in other words, went at Bork hammer and tongs; it even conducted an unprecedented – and expensive – campaign against him in the newspapers and on the airwaves.

Bork takes the view that the expansion of individual and civil rights by the Supreme Court in the previous four decades has reshaped American life. He does not necessarily disagree with the rights themselves. But he objects to the manner it was done. Instead of deferring to legislative and executive decisions, the Court had engaged in judicial activism, using its power to accomplish social goals of its own. In his view, the Court had gone well beyond what the Constitution allowed it to do and has usurped the powers of the other institutions.

Detour Around Democracy

In an astute assessment appearing in the London Daily Telegraph, American columnist George F. Will described Bork as the most intellectually formidable nominee to the court in fifty years. He agreed with Bork about judicial activism. For fifty years as well, he said, it had served liberal ends. Such activism negated the very idea of a written constitution. The U.S. was supposed to be ruled by elected representatives, not by nine Platonic guardians sitting in Washington.

One example that Will cited of the Court’s detouring around democratic processes was its sudden discovery in 1973 that there was a “constitutional right” to abortion. The Constitution makes no mention of any such right; the 1973 decision invalidated laws that all 50 state legislatures had enacted to regulate abortion. Whether or not Bork himself was against abortion, he realized that the Court had usurped the legislatures’ policy-making functions.

Now Bork himself has written a book explaining his legal principles; it has become a best seller. Its title is The Tempting of America: The Political Seduction of the Law. Paul Craig Roberts praises it in his “Washington Watch” column in the Financial Post, under the heading “Sand of sentiment is no foundation for law.”

“Robed” Politicians

For 200 years, the argument goes, the U.S. constitution kept the country free and economically prosperous, but if liberal law schools have their way this soon will end. The constitution is under full-scale assault in law schools because it supports democratic processes that annoy the political left.

The liberals want to turn judges into mini-dictators who can bypass legislatures. Bork calls them “robed politicians,” trained to issue rulings based on liberal sentiment rather than legal reason. The agenda of the ideologues that have captured the law schools “involves nothing less than the subversion of the law’s foundation.”

Central to this assault on the rule of law is the claim that the constitution does not mean what it says: it is regarded as a malleable document which judges in effect rewrite, to make sure that the right side, the “progressive” side, wins.

The founding fathers of the Constitution have been evicted; their place is taken by sociological faddists, feminists and Marxist muses. Law schools do not teach the law, but an attitude. Once the correct political result is settled on, a verbal formulation can always be concocted to support it.

Canada

By elevating their personal sentiments to the sublime, liberals think that they are serving great causes, but they are destroying an historic achievement – the rule of law that protects us all. With judges ruling according to their sentiments, there can be no law, only decisions based on whim or emotion.

Since 1981 Canada, too, has had a “constitution” known as the Charter of Rights and Freedoms. This has opened the door to activists bypassing elected officials by seeking help from irremovable judges. The nullification of the abortion law by the Supreme Court of Canada, in January 1988, has so far been their most spectacular success. But that is only one of a number of judicial interventions into the political process.

Environment

The Western Report of February 26, 1990, for example, reports that in May, 1989, Mr. Justice J.S.G. (“Bud”) Cullen of the Federal Court of Canada forced a halt to heavy equipment at work on Saskatchewan’s Rafferty-Alameda dam project when he ordered the federal government to conduct a review of the project’s environmental implications. Then Mr. Justice Francis Muldoon ruled that those efforts had to be beefed up.

As noted, the Federal Court has just ruled in favour of an appeal by environmentalists who argued that federal Environmental Assessment and Review Process (EARP) guidelines require Ottawa to review Alberta’s Oldman River dam near Lethbridge. And one week earlier two environmentalist groups launched a Federal Court action demanding a review of the half-complete, $500-million Daishowa Canada Co. Ltd. pulp mill near Peace River, 240 miles northwest of Edmonton.

These legal battles (and others on the horizon), the Western Report points out, will determine which level of government will ultimately control environmental reviews of major projects and, therefore, development itself. Already at stake are projects worth billions of dollars, including new and expanded pulp mills in British Columbia, dams in Saskatchewan and the huge $4-billion Other Six Lease Operations (OSLO) in Northern Alberta.

Unemployment Insurance

Environmental cases are by no means the only ones being decided by the judiciary.

On February 16, 1990, the Federal Court of Appeal confirmed a judge’s ruling that the Unemployment Insurance Ace discriminates against natural parents – as compared to adoptive parents – and must pay them benefits.

The Act gives adoptive parents the right to choose which one of them stays home with a newly adopted baby. In its ruling the Court asserts that natural parents, too, should have the right to decide whether the father or the mother should stay at home. In effect, the Court ruled that magistrates actually have the power to order the government to pay out benefits.

This Court decision directly usurps Parliament’s exclusive control over federal spending and is doing it on a grand scale. This particular ruling might cost the government as much as $450 million according to the Toronto Star (February 17, 1990).

Immigration

On March 5 of this year, Associate Chief Justice James Jerome ruled that Ottawa had too heavily restricted humanitarian reviews that may allow refugee claimants to remain in Canada, regardless of whether they are valid refugees.

According to some spokesmen, this ruling overthrows the existing legislation and all its procedures. It could mean that 80 per cent of about l13, 000 claimants should qualify to remain in Canada on the sole ground that they’ve waited so long for hearings, no matter what their background is or what the immigration department knows about them.

Rights for Sikhs but not for Others

On the same date, March 5, the Supreme Court of Ontario ruled Sikh students must be permitted to carry their (ceremonial) daggers to school.

This ruling has two effects. First, it means that the Ontario Human Rights Code now supersedes the Province’s Education Act. The Act governs the running of schools. The Code on the other hand, is very much the product of an activist “progressive” ideology. In Ontario, for example, it extends protection to the homosexual lifestyle.

A second effect of this ruling is that it contradicts other rulings. The kirpan or dagger is supposed to be a religious symbol, not a weapon. It may now be worn on the ground that it is part of the Sikh religion. Yet last year the same Ontario court system banned the teaching of the Christian religion and the use of the Lord’s prayer.

Abortion

In no area is U.S. judicial activism copied more zealously in Canada than that pertaining to abortion.

Bork’s lessons apply directly to Canada. How else, except in his terms of judicial activism, can we explain the neglect of reason and legal precedent in the Morgentaler and Daigle decisions? Madam Justice Bertha Wilson, for example, is an exponent of the American constitutional “right” to abortion.

It seems necessary for our judges to prove that they are on the right side, the side of “creative” interpretations of the law, so they are succumbing to the current prevailing ideology.

“Even in its highest ranks,” wrote George Grant after the January 1988 Ottawa Supreme Court judgment, “the legal system in its unthinking liberalism simply flounders in the face of those who find meaning in the triumph of the will. This has been shown in both of the liberally appointed American and Canadian judiciaries. When society puts power into the hands of the courts, they had better be educated.” Reading Bork would help them.