Judicial Activism: A Threat to Democracy and Religion.
Edited by Fr. Alphonse de Valk (Life Ethics Information Centre, $19.95 165 pages)

Reviewed by Paul Tuns The Interim

It has become increasingly apparent in recent years, and impossible to ignore in recent months, that Canada is not a democracy. We are ruled by nine robed dictators on the Supreme Court and numerous miniature versions of them across the country.

In Canada, the courts have become the primary social policy-making branch of government, taking it upon themselves to make, instead of merely interpret, law. So, the question is: why have the courts usurped Parliament’s role? The answer to that question – and many others – is found in the new book, Judicial Activism: A Threat to Democracy and Religion.

Judicial Activism is a collection of 17 essays, columns and speeches that have appeared in Catholic Insight magazine over the past four years. Edward McBride, a professor emeritus of political science at St. Mary’s University in Halifax, contributes two essays. The first begins the book and explains how we came to the point of judge-made law. In short, he says, the Charter of Rights and Freedoms opened the pandora’s box of judicial activism by creating a political, social and legal environment in which the courts would ultimately decide social policy through the re-interpretation and creation of law.

It is a role, McBride says, judges were only too happy to appropriate. Some people warned that this would happen when the Charter was written. Others said the Cassandras were wrong. Canada’s legal traditions and the discipline of judges, they said, would prevent the activism the Charter invited. Two decades of political and legal history have proven the Cassandras correct.

McBride says subsequent decisions that threw out Canada’s abortion law and Ontario’s Sunday shopping prohibitions, enshrined special rights for homosexuals and imperilled religious freedom

and freedom of speech, were the result of a “deficit of disciplined legal reasoning, combined with a surfeit of indulgent judicial imagination.” That is, the wishes and whims of justices substituted for morality and rule of law in the determination of just laws. Precedent was replaced by the prejudices of the judicial elite.

Most of the rest of Judicial Activism explores in greater depth these themes, by examining specific cases and issues. Rory Leishman outlines how the Supreme Court’s Vriend, Egan, and M. v. H decisions radically expanded gay rights (which led to the current assault on marriage). Fr. Alphonse de Valk (the book’s and CI’s editor) and lawyer Geoff Cauchi dissect the Marc Hall case, in which a Catholic high school was forced to accept a homosexual student and his date at a prom.

In another chapter, de Valk looks at how Chief Justice Beverley McLachlin thinks she knows better than children’s parents or school boards what books school children should be reading. (And what books may those be? Ones propagandizing the homosexual agenda, of course.)

While the essays have appeared before, it is useful to have them in this small, readable collection. With politicians and pundits talking about the “democracy deficit,” it should be made clear that there is no greater threat to democracy, nothing that removes our elected officials and ourselves from the process of self-government more, than when courts begin to create law. As much as it is a cliche to say it, understanding the issue is the first step to correcting the problem.

The first step to understanding the problem is to read Judicial Activism.

Paul Tuns is editor-in-chief of The Interim.