"Reason is always a kind of brute force; those who appeal to the head rather than the heart, however pallid and polite, are necessarily men of violence. We speak of 'touching' a man's heart, but we can do nothing to his head but hit it." --G.K. Chesterton

Thursday, April 4, 2019

Judicial activism is still an issue

I received an interesting email today from a professor of law who reminded me of an article, about judicial activism, that I had written for The Western Standard in 2006, and asked if he could place the article's text on one of his professional pages. The article, he said, is no less relevant and important today than it was 13 years ago.
I assented, of course, because I completely agree with him about the importance of the issue. Indeed, it's worth noting that, as part of the current SNC scandal that has so roiled the Liberal Party of Canada, it was charged that PM Justin Trudeau rejected a recommendation, from then-Justice Minister Jody Wilson-Raybould, for an appointee to the Supreme Court of Canada on the grounds that the judge expressed some concern about the high court's judicial activism. Trudeau was said to be aghast at the suggestion of his appointment, exclaiming that it would have been highly unsuitable because the Liberal Party of Canada was, after all, the "Charter party." Here's a link to that story.
And here is the complete text (as submitted to my editor at that time) of my March 2006 article:

The right to create new rights

Chief Justice Beverley McLachlin defends the Supreme Court’s ultimate power to make law


Parliament made history this past Feb. 27 [2006] when a special ad-hoc, all-party committee of the House of Commons gathered in front of reporters and television cameras to query Supreme Court of Canada nominee Marshall Rothstein. It turned out to be a rather gentle affair: more a friendly meet-and-greet with Rothstein, a 65-year-old Manitoba legal scholar and federal court judge, than a rough-and-tumble American-style grilling. But it was precedent-setting, nevertheless.

Never before had a nominee to the country’s highest court been compelled to face politicians in a public forum as a requirement to obtain his appointment. In fact, it was the first time a nominee’s name had even been made public before his appointment. Equally precedent-setting was the fact Prime Minister Stephen Harper, who led his Conservative Party to victory in the general election only a month before, had selected Rothstein from a list of three candidates nominated, again publicly, by a committee established by the former Liberal government.

Still, it was a cautious and eminently polite step towards the sort of judicial accountability practiced in most other modern democracies. The MPs did not have the power to stop Rothstein’s appointment, which Harper made official the following day. Nor did they have the authority to ask questions relating to specific legal matters. Nevertheless, Justice Minister Vic Toews, who once studied under Rothstein, had ample justification in describing his former professor’s three-hour conversation with politicians as “historic proceedings in the life of our country.”

Of course, Toews was referring to the novel public hearing itself, not to its content, which was quickly forgotten. But Rothstein’s answers to MPs’ questions, about the role of the judiciary in general and about the live-wire issue of judicial activism and the Charter of Rights and Freedoms specifically, were significant in any regard. “The important thing,” he said at one point, “is that judges, when applying the Charter, have to have recognition that the statute that they’re dealing with was passed by a democratically elected legislature…and therefore, they have to approach the matter with some restraint.”

Rothstein’s invocation of “restraint” might strike some Canadians as nothing more than an expression of good, old common sense. But at a time when the Supreme Court of Canada is under steady fire from traditionalists for its lack of said restraint, his avowed adherence to prudence is noteworthy. Especially so when compared to the recent public utterances of the woman under whom he is now directly working, Chief Justice Beverley McLachlin. Indeed, in several speeches and interviews of late, McLachlin has not only defended the court’s liberal interpretations of the Charter, but has also arguably imagined new ways in which the court’s de facto law-making powers might expand.

This certainly appeared to be the case in an eyebrow-raising address she delivered to a legal conference in New Zealand on Dec. 1 of last year. And it would seem to be equally true for the unapologetic position she took in an exclusive interview with the Western Standard on March 25 in Ottawa. An edited transcript of the interview can be seen on page xx. Her message, in a nutshell, is this: that, when necessary, the Court has every right—nay, every responsibility—to invoke “unwritten values” when ruling on matters not explicitly enunciated in either the Charter or the country’s laws.

Critics such as Rory Leishman, author of the upcoming book Against Judicial Activism, believe that, when the Court finds itself in uncharted Charter waters, it is far more appropriate for the judges simply to turn the matter back to Parliament. He says it’s what the judges should have done in Parliament’s 1998 request that the Supreme Court rule on the constitutionality of Quebec separation; no law existed in this area, Leishman points out, so the court should simply have thrown the matter back to the government. Instead, Leishman says the court concocted new law and regulations covering the secession of provinces from Confederation. Parliament is, after all, supposed to be the one that makes the law; the courts, on the other hand, are supposed only to interpret the law.

But Leishman, a columnist for the London, Ontario Free Press, and a host of other critics believe the Supreme Court has muddied the distinction. “They’re violating, essentially, the separation of powers,” he said in an interview. “And it will have disastrous consequences for respect of the independence of the judiciary, which is vital to democratic, constitutional government.”

That remains to be seen, but Leishman’s book, selected chapters of which were made available to the Western Standard in March in advance of its publication, reaches much the same conclusion as did the book, The Charter Revolution and the Court Party, published in 2000 by University of Calgary academics F.L. (Ted) Morton (now an Conservative MLA in Alberta) and Rainer Knoff. And that is that, in myriad ways, the Supreme Court has used the Charter to change government policy on, according to the Calgarians, “an ever-expanding list of controversial issues—abortion, aboriginal rights, gay rights, bilingualism, criminal law enforcement and prisoner-voting.”

To many traditionalists, especially social conservatives, the most notorious of the Court’s infringements on Parliament’s territory took place with its 1995 Egan decision, in which it added homosexual rights to the list of protected persons named in section 15 of the Charter. It did this in spite of the fact Parliament had explicitly omitted homosexuals from the section prior to the Charter’s adoption in 1982.

It was in her New Zealand speech last year that McLachlin delivered perhaps the clearest and most complete enunciation of the reasoning behind such judicial activism. And she also opened the door to yet further court adventures into what, for all intents and purposes, can be seen by most Canadians only as law-making.

To McLachlin, “there exists fundamental norms of justice so basic that they form part of the legal structure of governance and must be upheld by the courts, whether or not they find expression in constitutional texts.” She recognized that critics contend that “the invocation of unwritten norms cloaks unelected and unaccountable judges with illegitimate power and runs afoul of the theory of parliamentary supremacy.” Yet, she countered that “the idea of unwritten constitutional principles is not new and should not be seen as a rejection of the constitutional heritage” shared by countries such as Canada and New Zealand.

She pointed to the idea of natural law, which is the age-old understanding that unchanging moral principles exist which are common to all human beings, and explained that the unwritten norms or laws to which she was now referring are like a “new natural law,” one “which goes by the name human rights.” Whether explicitly expressed in a written form or not, McLachlin contended these laws are of paramount importance to a civilized country: “…the legitimacy of the modern democratic state arguably depends on its adhesion to fundamental norms that transcend the law and executive action.”

McLachlin recognized that the identification of such transcendent unwritten constitutional principles—principles so powerful that a judge has the duty to ensure that they prevail over “laws and executive action”—cannot be achieved without difficulty. But she argued that “three sources of unwritten constitutional principles can be identified: customary usage; inferences from written constitutional principles; and the norms set out or implied in international” treaties. It is a court’s duty to recognize these unwritten fundamental principles or norms, she argued. “This is not law-making in the legislative sense,” she declared, “but legitimate judicial work.”

Toronto lawyer Gwendolyn Landolt, national vice-president of REAL Women of Canada (a conservative research and lobby group), concludes McLachlin’s speech was an announcement of a not-so-veiled grab for more power. “The Chief Justice is of the belief that judges, upon their appointment to the bench, acquire such wisdom and knowledge that they are able to determine with certainty what is best of all Canadians,” Landolt wrote in a January analysis. In a more recent interview, Landolt elaborates, “What she’s trying to do, I think, is say, ‘We judges are impeccable. We have the authority. We the judges know best. We are qualified. We can make these decisions, because we swear an oath to be impartial,’ which is bunk.” The truth, Landolt asserts, is that judges are political appointees, and they often act it. In her speeches and interviews, “All McLachlin is really doing is being a propaganda machine, saying ‘how noble we are and that we’re not activists,’” Landolt says. “But every time she opens her mouth she just shows exactly what she’s doing.”

And, anyway, McLachlin is far from consistent in applying her logic. For example, in the judge’s interview with this magazine (a transcript of which was shared with Landolt), McLachlin defends the extension of same-sex rights to homosexuals as “a proper legal interpretation” based on the “open ended” language of section 15 of the Charter. However, the REAL Women spokesman notes that McLachlin could just as easily have applied to the same logic to property rights, which were also left out of the Charter. Instead, the Chief Justice told this magazine that such an issue would be best left to government. “That would be a decision for the provinces and federal government to make if and when they want to make it,” she said. Concludes Landolt: “She’s not being consistent.” It is difficult to escape the conclusion that such inconsistency may be due to a political bias: the advancement of homosexual rights is a liberal cause; property rights are generally championed by conservatives (see story, page xx).

Morton sees the same inconsistency. “It just shows her underlying ideological bias in favour of the sort of left-wing socialist causes,” he says. The academic-turned-politician does not see an easy fix to the problem of one-sided judicial activism. Even if Prime Minister Harper were to institute a more rigorous parliamentary review of Supreme Court candidates, nothing would change for many years because no new appointments are foreseen until about 2013; that’s because Supreme Court judges serve until they are 75 years old. McLachlin, for example, has served on the court since 1988 and has been Chief Justice since January 2000, but she is only 62. He points out that, in most European countries, judges typically serve for just nine years, and their appointments are staggered. On the other hand, as in stands in Canada now, “Harper could govern for the next two years, get re-elected to a majority government and govern from 2008 to 2012 and never make and appointment.”

Parliament does have the power to reconstitute the Supreme Court; after all, the court was created by an act of Parliament in 1875. Parliament might also establish a special committee to examine Supreme Court rulings that overturn laws and report to Parliament on possible remedies; former Reform Party leader Preston Manning once suggested the establishment of such a committee. Regardless, nothing this far-reaching currently on the agenda of any major party.

Moreover, making major changes to the Court, specifically as it relates to the Court’s power to interpret the Charter, would be a dicey move, politically. An Environics Research Group poll, conducted to mark the Charter’s 20th anniversary in 2002, found that seven of 10 Canadians believed that the Supreme Court of Canada, and not Parliament, “should have the final say when the Court declares a law unconstitutional on the grounds that it conflicts with the Charter.”

Significantly, however, the poll did not ask about the Court’s expanding power to create new law. And at a time when social activists are publicly musing about enshrining the right to state-funded medicare or the right to welfare, these are significant issues indeed. The ultimate question, then, is this: who do Canadians trust to decide what’s best for the country: 308 elected parliamentarians or nine unelected judges?