Article Added On: December 11, 2004 - over 3 years ago
Title: Judicial activism won't be thwarted
Author: Bruce Garvey
Publication: The National Post
Publication Date: January 01, 2004 - over 4 years ago
Faith Groups: Other
Themes: same sex marriage/blessing

Abstract: "The same-sex marriage revolution is upon us with a vengeance, now with legal approval from the highest court in the land," a column in The National Post reads. In the article, the author suggests that "endless striving for equality would eventually subvert democracy."

December 10, 2004

The same-sex marriage revolution is upon us with a vengeance, now with legal approval from the highest court in the land.

And while advertising executives must be drooling over what it must portend for next June's bridal-wear business, legal scholars are reacting with relief at the restraint of the Supreme Court of Canada in its acknowledgment that it falls to the weak-kneed government of Paul Martin to actually make it the law of the land. Wise Madam Chief Justice Beverley McLachlin would claim to have restored judicial-parliamentary equilibrium, routing those who've been screaming against judicial activism.

Well, somewhere in Quebec, the retired Madam Justice Claire L'Heureux Dube must be chuckling with satisfaction. Make no mistake about it: This court ruling and Justice Minister Irwin Cotler's pending legislation have been driven by the social activism of provincial appeals courts, rubber stamped by the Supreme Court and the Liberal government. Now that Justice L'Heureux Dube has been replaced on the Supreme bench by Rosalie Abella, a no less eager advocate of the same liberal causes, the others can be expected to proceed apace.

Conrad Black may not be the guy to quote these days, but since Pierre Trudeau's Charter of Rights and Freedoms made the Supreme Court the real governing body of the land, nobody has put it better: The effect of the Charter, he told us, was "to unleash on this country swarms of mad judicial tinkerers, social worker judges ignoring the law and carrying out what they took to be the moral imperative of remaking society along faddish and idiosyncratic lines."

In the wake of yesterday's decision, it's a good time to reflect on the warning of University of Western Ontario law professor Rob Martin that endless striving for equality would eventually subvert democracy.

"Every police constable is expected to act within the law and so are judges of the Supreme Court of Canada," he writes in his recent book The Most Dangerous Branch. "In practice, however, the judges behave as if they possess unlimited power and are not subject to any legal constraints. They amend the constitution at will, rewriting it or inventing new principles, as if the constitution were their private possession or plaything. The judges have also seriously undermined Canadian democracy. They often reach conclusions based not on law, but on personal preferences. It becomes increasingly difficult to accept that Canada has a legal system, so much has the court abandoned or subverted fundamental notions of law."

Outside a tight circle of legal academics, Prof. Martin's devastating critique attracted virtually no attention. But it's the kind of reasoned assault that makes Chief Justice McLachlin see as red as the fabric of her ermine-trimmed robe. At a legal conference this month, she went out of her way to debunk the theory that the court is populated by judicial activists intent on pursuing their own agendas.

But Prof. Martin painstakingly demonstrates otherwise. As he shows, in fact, Chief Justice McLachlin's erstwhile colleague, the Justice L'Heureux Dube, made a career out of this very practice.

The Chief Justice brushes it all aside as merely a sign that the courts have been granted a more visible and significant role in Canadian governance. "The reality in Canada," she says, "is that our constitution confers certain powers on unelected bodies, notably the courts. To start from the assumption that any exercise of governance power other than by elected officials, is illegitimate, is to ignore the reality of our democracy as defined by our constitution."

Interestingly The Globe and Mail reported that when questions were permitted from conference attendees, Liberal MP Derek Lee asked about two incidents of judicial activism: Madam Justice L'Heureux Dube urging members of the public to use the law to effect change; and the Ontario Court of Appeal supporting same-sex marriage even as a parliamentary committee was studying the issue.

The Chief Justice declined to address either instance. But she did, apparently, suggest that it might be "harmful" to describe the actions of the judiciary or any other branch of government as wrong or illegitimate.

Mea culpa?

For her part, Justice L'Heureux Dube once wrote: "In a complex society with increasingly involved rules and inter-relationships, it is no longer acceptable for courts to foist the entire responsibility of lawmaking upon the legislature."

Nothing has changed. Wait and see.

Original article