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
TERRY O’NEILL
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?
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