Scholars analyze what’s behind ‘judicial activism’ in Canada

The Charter Revolution and the Court Party by F.L. Morton and Rainer Knopff (Broadview, $22.95, 227 pages).

In recent years the critics of judicial activism have grown tremendously in number – theNational Post, the Canadian Alliance, various academics, pro-family and pro-life groups,The Interim – and with good reason: judicial activism is growing and consequently so is the power of the courts compared to the elected provincial and federal legislatures. Perhaps the most well-known critics of this phenomenon are University of Calgary professors F.L. (Ted) Morton and Rainer Knopff, authors of The Charter Revolution and the Court Party.

(Interim readers will note that Morton will be the featured speaker at the upcoming March for Life banquet in Ottawa May 11 (see advertisement p. 10).)

The problem, the authors say, is that “A long tradition of parliamentary supremacy has been replaced by constitutional supremacy verging on judicial supremacy.” The reason for this is the Charter Revolution and the emergence of the Court Party.

In the first 16 years after the Charter of Rights and Freedoms came into being (1982), the Supreme Court of Canada (SCOC) struck down 58 federal and provincial statutes. The decisions of the SCOC – Morgentaler, Egan, Vriend, M v. H to name a few – have as much, if not more influence on public policy than legislation passed by Parliament or the provincial governments. The authors note the M v. H decision which prohibited the use of the traditional opposite-sex definition of spouse could potentially affect “more laws than all [the SCOCÕs] previous Charter rulings combined,” possibly as many as 58 federal and provincial statutes.

But the judges are both the means and a cause of the Charter Revolution. The problem is actually much larger than the mere over-reaching of a handful of judges. Morton and Knopff point to a more nefarious cause: the Court Party. As they put it, the judiciary is the policy-making institution, the Court Party its partisans.

The Court Party is a coalition of interest groups that have a stranglehold on the legal system, who appear in the nation’s courtrooms to use Charter litigation to pursue their own policy demands. These interest groups represent feminists, gay rights activists, civil libertarians, visible minorities and immigrants, prisoners’ rights groups, environmentalists, and so on. These special interests have an inordinate amount of influence over the “jurocracy,” consisting of the SCOC justices, lower court justices, law clerks, law schools, human rights tribunals, lawyers within the ministries of justice across the country, other government bureaucracies and other special interest groups.

Morton and Knopff say the Court Party’s continued power comes from the financial and institutional support that it draws from the state bureaucracies, at both the federal and provincial level. For instance, 10 law schools in 6 provinces host the feminist National Association of Women and the Law (NAWL), by providing office space and support services. NAWL set up the Canadian Journal of Women and the Law “to promote feminist scholarship” and it has successfully lobbied on behalf of pro-feminist judges, gender sensitivity training schemes for sitting judges and the reinstatement of the federally funded Court Challenges Program (CCP).

Also, programs upon which these special interest groups draw their funds are run by their many of their own, whether it be the CCP, the federal or provincial attorney-general, Heritage Canada, law schools or human rights commissions. The authors take three chapters dissecting this taxpayer-funded network of support.

The network can at times seem almost incestuous. After the Charter was adopted, the federal Justice Department created the Human Rights Research Fund which has provided grants for the founding of The Women’s Legal Education Advocacy Fund and paid for the preparation of briefs by the National Action Committee on the Status of Women and NAWL. The CCP often funds the interventions of other Court Party partners, such as the homosexual lobby group EGALE and various feminist groups.

Furthermore, narrow special interest groups, especially if connected to a university, are then given privileged access to the media as non-partisan experts. After the 1988 Morgentaler decision, which left Canada lawless with regard to abortion, “the main [media] networks relied heavily on interviews with women lawyers and law professors, almost all of whom were active feminists.” These sources overstated “the scope of the Court’s decision” by, among other things, interpreting the decision to mean that the government must fully fund all abortions.

The over-riding goal of Charter politics has often been to sacrifice individual liberty for group equality, and to overturn what is tried and true to promote libertine social experiments. This has turned the idea of rights and freedoms on its head, from its classical presumption of “negative liberty” – or rights that protected one from the government – to a new “positive liberty,” in which rights are characterized by government services. Furthermore, the authors note that certain groups (feminists, homosexuals) can use the Charter to force the hand of not only the federal government but other levels of government and private organizations. For instance, the Vriend decision forced Alberta to include “orientation” in its Human Rights Act which is in turn used to prohibit businesses and organizations (in this case, a church) from “discriminating.”

The effect of the Charter Revolution and the dominance in society of the Court Party has been nothing short of an undemocratic, and sometimes anti-democratic, revolution – the replacement of the legislature from its prominence in creating laws by the jurocracy. The courts have become the arbitrator of all social debates, deciding who wins the most contentious and important debates by listening to people very much like themselves, other members of the Court Party. As the authors say, “Issues that should be subject to the ongoing flux of government by discussion are presented as beyond legitimate debate, with the partisans claiming the right to permanent victory.”