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The Most Dangerous Branch: How the Supreme Court of Canada Has Undermined Our Law and Our Democracy [Hardcover]

Robert Ivan Martin
3.3 out of 5 stars  See all reviews (6 customer reviews)
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Book Description

Nov. 19 2003
Judges on the Supreme Court of Canada are guided by reason and principle - or so most Canadians think. In "The Most Dangerous Branch Robert", Martin argues that the court has changed from acting on principles to acting on values, allowing it to impose its own personal preferences. As judges are not elected, Martin argues, they should not be permitted to set the social agenda, amend legislation, amend the constitution, or attack democracy and democratic institutions. "The Most Dangerous Branch" shows that the Supreme Court has done exactly this in dealing with abortion, assisted suicide, homosexuality, and Quebec secession through decisions that were guided not by reasoned understanding of the principles of law but by the values of judges - values they, as unelected representatives of the Canadian state, had no right to impose.Martin shows that Supreme Court judges have adopted an orthodoxy of moral relativism and identity politics that he likens to a secular state religion. This orthodoxy denies the possibility of objectivity about human endeavour and regards social reality as 'constructed'. While purporting to be concerned with the plight of the oppressed, it is actually based on profound condescension. Martin believes that the 'theocracy' which dominates the Supreme Court of Canada is subverting democracy and the rule of law. In "The Most Dangerous Branch", he calls on Canadians to take back their country.

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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 court’s judgements with scant regard for the implications for parliamentary democracy. Martin’s 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 Court’s expanding role is easily illustrated. Bertha Wilson’s decision in the Singh case, granting Charter rights to anyone who set foot on Canadian soil, rendered Canada’s 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 one’s view but the legitimacy of the Courts making decisions on matters that are properly the responsibility of parliament. Four years before last year’s 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 Lamer’s judgement was pure invention.”
In recent years feminists, the architects of contemporary orthodoxy, have driven the Supreme Court’s 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 Court’s 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 court’s decision.
Former Justice L’Hereux-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 ‘ Person’s Day’ breakfast, organized by LEAF, which regularly appeared before the Court to argue its case. L’Hereux-Dubé, speaking in Sudbury in October 2000, obviously did not. Martin has much to say about L’Hereux-Dubé’s decisions, concluding:”L’Hereux-Dubé’s 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, L’Hereux-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 Court’s judicial arrogance on the country’s 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 Canada’s 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 women’s 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 Martin’s book stimulates a much-needed rebuff to Canada’s overweening judiciary.
Martin Loney (Books in Canada)
-- Books in Canada

About the Author

Robert Ivan Martin is professor of law, the University of Western Ontario and the co-author of A Sourcebook of Canadian Media Law.

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First Sentence
Despite the fact that, every year, judgments of the Supreme Court take up thousands of pages in the law reports, it is difficult to continue describing the court's annual production as "law." Read the first page
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Front Cover | Copyright | Table of Contents | Excerpt | Index | Back Cover
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Customer Reviews

3.3 out of 5 stars
3.3 out of 5 stars
Most helpful customer reviews
15 of 16 people found the following review helpful
5.0 out of 5 stars Get past the partisanship and enjoy the book May 9 2004
Format:Hardcover
Martin clearly comes from the old school mode of thought, in many instances a quick glance into the notes of the book weakens his arguments. The reader should be reminded that Martin is commenting on the way the court reaches its decisions and not necessarily the result.
The chapter dealing with the influence of feminism on the courts is particularly illuminating. Despite my wide disagreement with the author on many issues, I found myself agreeing with his complaints that the courts decisionmaking is often long winded and confusing, heavily influenced by outside sources. Essentially, to borrow a phrase from the book, they are making it up as they go along. I recommend it to anyone interested in Canadian constitutional law.
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5 of 7 people found the following review helpful
5.0 out of 5 stars Terrific but chilling read Oct. 4 2004
Format:Hardcover
I first became acquainted with Robert Ivan Martin by hearing him on talk shows. He came across as profoundly informed, knowledgeable and deeply concerned about the state of democracy in Canada. I couldn't wait to read his book and it certainly is an eye opener. For anyone seriously interested in how damaging the Court is to the democratic process, this book is a must read. I sincerely hope that a follow up book by the professor will someday be published.
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5.0 out of 5 stars How Could This Happen? Dec 19 2003
Format:Hardcover
In The Most Dangerous Branch, Robert Martin delivers a scathing indictment of the Supreme Court of Canada. The book examines the ways in which judges have hijacked the legal system: they have turned the law into their own personal plaything; they have deliberately and unilaterally expanded thier own authority; and they have attempted to set the social agenda in Canada. Martin argues that, becuase they are not elected representatives of the people, they have no right to do any of these things.
This book is about abuse of power. Martin is primarily concerned with how decisions are reached by the Supreme Court. He argues that Supreme Court decisions are largely based on the whim of judges, rather than the law. He illustrates this point brilliantly with an exhaustive array of examples that are sometimes amusing and often alarming. In reading the book, I found myself asking, how could these things happen?
Supreme Court judges are meant to strive to be impartial, or, at least, to create the appearance of being impartial. Martin demonstrates how they done just the opposite by aligning themselves with identity groups and by publicizing, and even celebrating, their partisan views on political issues. Their handling of the Constitution and the Charter, Martin argues, is equally biased. They have appointed themselves as interpreters of both documents, often "reading in" laws and/or rights that do not exist.
Martin's book is expertly written and his arguments are well documented. His prose is clear and direct. At times, he is vitriolic and hyperbolic, which inevitably will be seen by some as a weakness. However, I think that Martin is at his best in these passages because his words betray in him a true passion for honesty, integrity, and the law.
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