Many readers of the Globe and Mail’s Focus section for January 11 must have been surprised to find in it support for something that Campaign Life Coalition, REAL Women, and The Interim have been saying all along: that there exists a loose coalition of judges, lawyers, law professors, bureaucrats and media people which is pursuing a pro-abortion, anti-family agenda.
“Forget Parliament. It’s the judicial system that has emerged as the instrument of political change,” says the subheading of a story by Al Strachan dealing with two University of Calgary political science professors, F.L. Morton and Rainer Knopff. The Calgarians claim that this loose alliance uses “a new playing field for the pursuit of politics – the courts.”
They call the alliance the Court Party.
What has happened in Canada since 1982 (the year the Charter of Rights and Freedoms came into effect), says Prof. Morton, is a mini-revolution. The judges drive the Charter, and not vice versa, and the members of the Court Party take full advantage of this development.
The feminist Legal Education and Action Fund (LEAF) heavily influenced the wording of sections 15 and 28 of the Charter, dealing with equality rights, and then sought ways to take advantage of the wording. It has gone on to become the most frequent intervener in Charter cases before the Supreme Court.
One of its prominent members, Elizabeth Shilton, says, “I am a feminist litigator and I am in the business of social change.”
Another, May Lou McPhedran, says, “I represent the public and work against government, all governments.”
Yet LEAF receives most of its funding from the federal government.
When the 1969 abortion law was overturned in 1988, Morton and Knopff say, members of the Court Party staged a public relations battle on the ground that the abortion law had violated the Charter, even though that was not the ruling.
In the subsequent debate, the media relied heavily on women lawyers and law professors, most of whom qualified as Court Party representatives. Madame Justice Bertha Wilson was quoted at length, the four judges who agreed with her only seldom, the two dissenting judges virtually ignored.
It is virtually impossible, say the two political scientists, to find a law review article expounding judicial self-restraint or narrow Charter interpretations. In an article entitled “Women’s Organizations’ Use of the Courts,” Karen O’Connor advocates flooding the law reviews with articles supporting feminist views; and that is what is happening.
The Charter has become a powerful weapon in the “pro-choice” arsenal.
Not surprisingly, Gwen Landolt of Real Women, a lawyer herself, overheard a conversation at a Law Reform meeting reflecting the Court Party’s confidence in its ability to shape events. During the lunch break someone asked a judge what would happen if Parliament produced a pro-life bill. “Oh well,” answered the judge, “we’ll just refer it to the Supreme Court, and you know what they’ll do with it.”