The enthusiasm of the Canadian courts for expansive interpretations of the Constitution Charter has not been universally welcomed. No critic has yet offered so cogent a critique as Robert Martin. This book is an eloquent and well-researched indictment of Canadian judicial arrogance and the complacency of those elites who, sharing the assumptions that underpin judicial orthodoxy, applaud the courts judgements with scant regard for the implications for parliamentary democracy. Martins argument is not primarily with the specifics of individual rulings but with the way in which the Supreme Court has invaded the arena constitutionally reserved for the legislature, reading in to the Canadian Charter provisions never intended by parliament.
The Courts expanding role is easily illustrated. Bertha Wilsons decision in the Singh case, granting Charter rights to anyone who set foot on Canadian soil, rendered Canadas refugee determination system open to widespread abuse. It paved the way for the current legal paralysis where suspected Middle Eastern terrorists, Tamil gangsters, Chinese Triads and a host of other unsavoury characters can stay in Canada with relative impunity, accessing an apparently endless number of publicly-funded legal appeals. In her decision Justice Wilson made it clear that, in her view, judges should not be constrained by the financial or administrative consequences of their decisions. A rejection of accountability that Martin characterizes as the antithesis of democracy.
Parliament had never intended to grant Charter rights to those who lacked permanent residence. In the case of homosexuality, as University of Calgary political scientist Ted Morton has shown, a parliamentary committee voted 22 to 2 against a motion to add sexual orientation to the groups protected under Section 15, the equal rights provision. This did not constrain the Supreme Court in the 1998 Vriend v Alberta case from reading in such protection, a decision which, in turn, lead the courts to play a decisive role in legalizing same-sex marriage, another area where parliament had clearly stated a counter view. The issue for Martin is not whether a particular decision accords with ones view but the legitimacy of the Courts making decisions on matters that are properly the responsibility of parliament. Four years before last years Ontario Court of Appeal decision the House of Commons determined that a marriage was the union of one man and one woman; only 55 MPs demurred. It is quite possible to support same sex marriage but resolutely oppose the way in which the issue has been determined in Canada.
Most Canadians no doubt presume that Supreme Court judges are eminent scholars of jurisprudence, able to make definitive judgements on complex constitutional questions. Martin, a long time professor of law at the University of Western Ontario, paints a different picture. Former Chief Justice Antonio Lamer was a great enthusiast for judicial enterprise. In one ruling he observed: There is in Canada a separation of powers among the three branches of government-the legislature, the executive and the judiciary. In fact, as Martin is at pains to point out, there is no such separation; most obviously the executive is made up of members of the legislature. The judiciary is independent not autonomous. In another case Lamer claimed to find in the Constitution Act of 1867 the authority to give provinces the constitutional obligation to create judicial compensation commissions-a decision which arose from judges unhappiness about being included in the broader constraints on public sector salaries in the 1990s. Lamer, no doubt to the joy of his fellow judges, claimed to find in the Preamble to the Constitution, a deeper set of unwritten understandings which are not found on the face of the document itself. This gave judges the opportunity to use these organizing principles to fill in gaps-in this case judicial compensation commissions. Martin notes, with characteristic bluntness: Most of Lamers judgement was pure invention.
In recent years feminists, the architects of contemporary orthodoxy, have driven the Supreme Courts agenda. There are many elements in this orthodoxy, including the belief that race, gender and sexual proclivities dictate social understanding. This is linked to a pervasive relativism in which it frequently seems that all ideas are equally worthy, though on closer examination it turns out that any ideas that challenge relativism or other feminist precepts are not in the least worthy. Canadian society is comprised of a range of victim groups in need of special assistance and legal protection from the intemperate views of the majority (though if the practitioners of orthodoxy were capable of joined-up thinking they would realise that the sum total of victims comprise a significant majority). The courts must be endlessly alert to the different views and status of such groups lest a misguided belief in formal equality fails to deliver the substantive equality required.
The metaphysical abstraction might be more easily stated in practical terms. The courts should favour the claims of victim groups at every opportunity. The only consistency required is in endorsing such claims. Struggling to find some intellectual coherence in the Supreme Courts decisions, Martin suggests instead that those seeking a predictive model based on the consistent application of clear principles of jurisprudence will be frustrated. Observers might be better to ask on which side the government-funded, feminist advocacy group the Legal Education and Action Fund (LEAF) is intervening. This will usually provide a sure guide to the courts decision.
Former Justice LHereux-Dubé became an avowed feminist, though when first appointed to the court her stated views gave no hint of her conversion. None the less by the end of her tenure there could be no doubt of her views, regularly expressed inside the Court and elsewhere. Some might share with Martin concerns about the propriety of a Supreme Court Justice speaking at a Persons Day breakfast, organized by LEAF, which regularly appeared before the Court to argue its case. LHereux-Dubé, speaking in Sudbury in October 2000, obviously did not. Martin has much to say about LHereux-Dubés decisions, concluding:LHereux-Dubés approach to judging appeared to be this: Before the hearing began, she would make up her mind as to which party she favoured
. Arguments she did not favour would be dismissed as myths and stereotypes. Buttressing herself with heavy doses of academic articles written by feminist authors, LHereux-Dubé would, as I interpret her approach, then write a judgement reaching the conclusion she had already decided upon in advance of the hearing.
The Supreme Court does not exist in a vacuum and Martin lays much of the responsibility for the Courts judicial arrogance on the countrys law faculties. Each judge now has three judicial law clerks, which no doubt lightens the burden of judging but also ensures a direct line of transmission from the latest ideological musings in the law faculties, from where the recent graduates are recruited, to the bench. The law clerks do independent research and submit their written arguments to the judge to assist in determining the outcome of cases before the court.
The links between the courts and radical feminists and their allies in university law faculties are not fanciful. A recent book by Constance Backhouse, formerly at Western and now on the law faculty at the University of Ottawa, reaches what she apparently thinks is the significant conclusion that the history of Canadas legal system is tainted by racism, a finding which others might have thought deafeningly obvious. Backhouse is the author of an earlier text on women and the law, cited by Martin, which pushing any scholarly pretence to one side avows as its purpose the location of feminist heroines. Backhouse is also the first academic in Canada, so far as I am aware, to assign students to work at a fundraiser for a womens refuge as part of a graded assignment. Backhouse is not some marginal figure in Canadian law; her book Colour-Coded: A Legal History of Racism in Canada, 1900-1950 received a ringing endorsement from Ontario Chief Justice, R. Roy McMurtry, who was quick to acknowledge the deep and abiding legacy of racism.
The influence of orthodoxy is not only assured by law faculties. The National Judicial Institute exercises considerable influence in shaping judges attitudes. Martin tried without success to obtain the syllabus for the Social Context Education program run by the Institute. I experienced similar resistance two years ago when I sought information about their educational activities and asked why critics of orthodoxy seemed not to merit inclusion. The Institute is funded by Canadian taxpayers but unlike other government bodies it is exempt from the Access to Information Act.
Martin has written an important and disturbing book, the result of a lifetime of reflecting on the growing reach of the Canadian judiciary. His own commitment to a democratic red Tory view of Canada is in stark contrast to the patronising view of elites, whose much advertised progressive thinking conceals a visceral contempt for ordinary Canadians. Canadians who share his populist convictions should hope Martins book stimulates a much-needed rebuff to Canadas overweening judiciary. Martin Loney
(Books in Canada)
-- Books in Canada