Compromising freedom

Against Judicial Activism: The Decline of Freedom and Democracy in Canadaby Rory Leishman McGill-Queens University Press $44.95

Do our courts and human rights tribunals now threaten our freedom? This careful book by veteran journalist Rory Leishman soberly lays out the reasons for thinking they do.

Leishman, a long-time London Free Press columnist, starts by confessing that in 1981 he vocally supported the proposed Charter of Rights and Freedoms and human rights codes. Then he carefully frames the questions that led him to change his mind: Have these legal instruments allowed courts and tribunals to usurp the legislative function, depriving us of democracy, and subjected us to arbitrary rulings, depriving us of freedom? And he marshals impressive evidence that they have.

The result is anything but lurid. Indeed, it requires patience from the reader, not because it is badly written but because jurisprudence is inherently dry and technical. But those who object to shouting and bumper-sticker arguments should welcome his methodical approach regardless of their stand on the issue.

Which need not be conservative. Leishman grants Canadian Supreme Court Chief Justice Beverley McLachlin’s complaint that the dispute “often reduces itself to a debate about whether one likes or does not like a particular judicial decision.” But he cites the B.C. Human Rights Tribunal ordering the Vancouver Lesbian Connection to let a man join, as well as other cases — like that of expelled teacher Delwin Vriend who lost his job because he was homosexual — to support his claim that, facing a bewildering series of conflicting rulings with no evident basis in written law, common law or the manifest intentions of legislators, no one now knows where they stand. Not citizens and not “experts” like then Justice Minister Irwin Cotler who, in December 2004, erroneously assured Parliament that secular marriage commissioners would not have to marry same-sex couples.

Leishman also underlines a curious feature of the debate, namely that defenders of judicial activism do not defend it. Instead they deny it exists. Judges may read the Charter reference to “the supremacy of God” as establishing “the essential secular nature of Canadian society” or cheerfully say a ruling “does not involve the strict application of legal rules or the interpretation of law.” But former Supreme Court Justice Bertha Wilson expressly warned, “There would be something deeply illegitimate about our forays into judicial review of legislation if all there was to them was a desire to substitute our own personal values for those of our duly elected representatives,” less than three months after helping strike down abortion in the 1988 Henry Morgentaler case, in which seven judges split four ways. A decade later, Antonio Lamer gave an account of his reasoning that flatly contradicted his written judgment at the time.

Likewise, a week after the Ontario Court of Appeal found a right to homosexual marriage in the Charter in its Halpern ruling, Chief Justice McLachlin told the Canadian Club, “Unlike politicians, judges do not have agendas.” Yet that same month, two of the three Halpern judges attended a Pride Week party where gay activists congratulated them. To deny the obvious suggests an uneasy conscience.

One part of Leishman’s case is not convincing. He puts too much blame on Canadian judges and too little on the accidental constitutional revolution brought on by passage of the Charter of Rights and Freedoms in 1982. He calls the Supreme Court inconsistent for refusing to strike down Canada’s abortion laws in 1976, under the Bill of Rights, then doing so under a superficially similar Charter clause in 1988. But he is wrong to reject former Chief Justice Brian Dickson’s claim that the 1960 Bill of Rights explicitly recognized existing rights whereas “The language of the Charter is imperative. It avoids any reference to existing or continuing rights” in favour of a “ringing” proclamation of “fundamental freedoms.”

One might hesitate to exempt from checks and balances anyone who, like Chief Justice McLachlin, publicly says she and her colleagues “embody the most valuable qualities of impartiality, empathy and wisdom.” But the Constitution may not give us any choice. In 1982, the prime minister, premiers and Parliament abolished parliamentary sovereignty of the British sort without creating popular sovereignty of the American sort. By mistake, but unmistakably, they vested supreme power in a non-elected conception of the public good, a constitutional disorder not unknown in human affairs but never before seen in a democracy.

As a result, judicial activism in Canada is even harder to stop than Leishman thinks. Which is unfortunate, because his careful book makes it very hard to deny that it’s a major problem.

[First published in the Ottawa Citizen]