The Supreme Court has become a tool of the Left. Can reform restore its impartial credibility?
VIDEO: [CPAC] First-year Canadian law students learn that the courts do not actually make law; that is, they do not have the power to pass legislation. However, in this video Supreme Court of Canada Justice Clément Gascon states that ‘the role of the Supreme Court as far as I’m concerned is basically to stand as the leader in the country in terms of the making of the law.’ [Nov 10, 2016]
To secure and sustain their respect and dignity before the common people, the courts of Canada and elsewhere conduct themselves with certain grave rituals. When the judge enters the courtroom, for instance, the clerk of the court intones “All rise” and all do. Thereafter, the judge is referred to as “Your Worship” or “Your Honor,” depending on the rank of the court. Rival lawyers refer to one another as “my learned friend,” and people arriving in court or leaving it when it is in session must solemnly bow to the bench. All of this is intended, of course, to assert the fact that this is not a political arena. Here, there must be no mud-slinging, abuse, brays, taunts, jeers and razzing into which parliamentary debate has been known to descend. This is a court of law.
So, anyway, did the judges customarily insist. But that was before the former Prime Minister Pierre Trudeau gave us the Charter of Rights and Freedoms. Through it, the nine appointed judges of the highest court of the land were able to turn that court itself into a kind of nine-man monarchy with a self-endowed authority to over-rule those who were elected to office. It now becomes evident that this dubious authority has gone straight to their heads. No longer, they have plainly decided, need judges confine themselves to declaring what the law is. They must now go forward, and declare also what the law should be!” No longer were they mere jurists. They were now unelected legislators, cause pleaders and propagandists, dictating to the elected members of Parliament and the provincial legislatures what they may and may not do.
Like it or not, therefore, the judges have endowed upon themselves all the freedoms of public debate, often involving principles that came before them — or currently are before them — as judges? They had, of course, to give reasons for their uninvited intervention in the legislative process. So the question naturally arose: Can their court maintain its cherished decorum and ritual objectivity with its members deliberately embroiling themselves in public disputations? Or will it inevitably descend into the same nasty name-calling and abuse that from time to time attends upon those who pass laws? Last month the answer to that question was delivered to the country. It came, not as an official declaration or document, however, but with the publication of a book.
It is some book! Its title neatly sums up its message—”From Democracy to Judicial Dictatorship in Canada: The Untold Story of the Charter of Rights.” But it is not the usual airy-fairy tome written by and for academics. The text excoriates specific judges and specific cases, giving (as the saying goes) “names, dates and weather conditions.” It manifests, that is, what someone once called “an appalling accuracy.” It flatly accuses these worshipful and honorable gentry of the bench of acting, not with juristic objectivity at all, but out of an unrestrained pride of office. Again and again such words as “arrogance,” “hubris,” “egotism,” “conceit” and “elitism” are summoned to describe the real motives behind the new phenomenon of judicial “activism.”
The book has three authors: C. Gwendolyn Landolt, constitutional lawyer, former crown prosecutor, one of the founders of the REAL Women of Canada movement and its national vice president; author and historian Patrick Redmond, and Douglas A. Alderson, a lawyer who has written extensively on constitutional law. The table of contents does not show who wrote which of its 15 chapters, leaving the presumption that all three signed off on the whole 15. Its central assertion, however, is altogether clear. Members of the court in their public non-judicial pronouncements have departed so far from objectivity and neutrality on central principles that the court has effectually lost all judicial credibility.
Its new judicial perspective, though unstated, was nevertheless unmistakable. We (the judges) are right because we are judges. Lesser beings — elected politicians in particular — are not fit to make these decisions. Such is the thinking. Page after page for more than 300 of them, that attitude comes through, and it leaves only one conclusion: Any traditionalist who expects anything resembling fair treatment from such a monstrosity must have lost all touch with reality. He is the lone mouse before a jury of cats. If he stands, that is, for the Canada that once existed, he is not just a litigant before the court. He is its enemy. The court, that is, has been made captive to various special interest groups, so skilled in the techniques of mass communication that they have successfully concealed from public perception the factually paltry numbers of their adherents. They have also frightened the politicians, and hoodwinked the media. Most important of all, however, they have changed the nature of the courts. Judges once stayed well clear of the law-making process. They once had guide books, some still in use, which set forth the dangers and traps that promoters, polemicists, and pleaders could lure judges into.
Best known of such books in Canada was “Ethical Principles,” written by John Owen Wilson, former chief justice of British Columbia. “Judges must, of course, reject improper attempts to influence their decisions,” writes Wilson. “Regardless of the source — ministerial, journalistic or other — it may be safely assumed that every judge will know that attempts to influence a court must only be made publicly in a courtroom.”
The guide book is particularly concerned to warn judges away from political activity. “Judges should avoid any activity or association that could reflect adversely on their impartiality or interfere with the performance of judicial duties.” Even more specifically: “Judges should avoid involvement in causes or organizations that are likely to be engaged in litigation.” Finally: “Judges should refrain from conduct such as membership in groups or organizations, or participation of public discussion which in the mind of a reasonable, fair minded and informed person would undermine confidence in a judge’s impartiality with respect to issues that could come before the courts.”
A judge should be ready to disqualify himself from a trial if circumstances suggest possible partiality or unfairness. Judges “should disqualify themselves in any case in which they believe they will be unable to judge impartially. A judge should disqualify him or herself if aware of any interest or relationship which, to a reasonable, fair minded and informed person would give rise to a reasoned suspicion of lack or impartiality.’
With the advent of the Charter, however, all this was about to change. “It was this very requirement of impartiality,” says the three-author book, “that appears to have been the aspect of judicial conduct that has been most vigorously rejected by many judges in the turbulent years following the proclamation of the Charter.”
The three authors knew what they were writing about, for by far the loudest and most outspoken radical feminist voice was none other than that of the sitting Chief Justice Beverley McLachlin herself, who served in that office from January 2000 to December 2017. Instead of providing a model for juridical impartiality and objectivity, she led the pack of cause pleaders. From public platforms as far away as New Zealand she loudly proclaimed the feminist credo and its application to current controversies. Some examples:
The fact that by making herself a loudspeaker for feminist and other leftwing ideology, Madam Chief Justice McLachlin was posing the very kind of threat to the court’s credibility that she was describing and deploring does not appear to have occurred to her. Whom it very much did occur to, however, was the REAL Women’s movement. They laid a series of complaints before the Canadian Judicial Council, the body designated to hear complaints of judicial misconduct.
The complaints were one after the other dismissed. “Despite its intended purpose,” write the three authors, “the reality is that the Council has shown itself to be a toothless entity because it has failed to protect the public from judicial misconduct. This has created a public scandal. The failure to carry out its responsibilities to the public is due to the fact that the Council acts more as an insiders’ club with a total lack of transparency.”
Whether this situation represents a “scandal” might be debated. If nothing else, it was certainly a farce. The Judicial Council consists of judges only, headed by the chief justice. The person centrally accused of endangering the court’s impartiality is the chief justice herself. So she would have been heading the investigation of herself. “Well,” scoffed one journalistic wag, “at least she‘ll get a fair trial.” Observed Newfoundland’s irrepressible Tory comic John Crosbie: “The Canadian Judicial Council “is a black hole into which complaints about judges disappear, never to be seen again.” Such was certainly the experience of REAL Women. The Council, they said, seemed to view its function as one of defending judges against their critics.
The chief justice was not by any means the only judge-politician to plunge publicly into issues that were, had been, or soon would be before the court. Her close rival would be Madam Justice Claire l’Heureux-Dubé who served on the court from 1987 to 2002. She sounded her feminist and pro-gay views without any discernible effort whatever to preserve impartiality. Two examples:
“Judges,” observes the three-author book as it draws to a close, “have used the Charter for their own purposes. Too many of them have used the Charter to strike down legislation they did not personally like. They did so by interpreting the ‘vague’ words of the Charter to suit their own personal perspectives… Judges are in no position and are unqualified to make public policy decisions. It is up to Parliament and the provincial legislatures to do so… This elitism is based on nothing more than judicial hubris — the mistaken belief that judges are somehow superior to the public.”
The three-author book, however, is under no illusions on the difficulties involved in ridding the Supreme Court of renegade judges and restoring an elected Parliament and legislatures as the definitive political power in Canada. The court will do everything it can to preserve the power of the court. The Canadian Judicial Council amply demonstrated itself useless. What can be done? The book advances a two step strategy:
First: Establish the total legitimacy of the “notwithstanding clause,” and put it to work in voiding judge-made laws “Hesitation to invoke the clause over the past 36 years of the Charter’s existence must cease,” says the book, “if we are to restore responsible government in CanadaFN,Parliament and the legislatures must assert themselves by having the final say on legislation.” Since an acquiescent Supreme Court has been a key advantage of the Left, it has always opposed any usage of the clause as representing a total betrayal of democracy. (How enabling an elected Parliament or legislature to overrule a panel of unelected judges constitutes a “betrayal of democracy” is something the left has never been in a hurry to explain.)
Second: Begin the process of constitutional reform that would prohibit judges from public out-of-court discussion of legislative issues. This would require an amendment to the Constitution Act which needs approval of both houses of Parliament and two thirds of the provinces that have in aggregate at least two thirds of the population. Tough terms to meet. no doubt, but another factor argues for some such reform. The spectacle of judges routinely making political speeches becomes increasingly common. It also directly and dangerously erodes the credibility of any court in ways that Chief Justice McLachlin herself has very adequately described ,and also ignored. (See above.)
The three-author book covers two other major issues in which the court effectually made the law. In one, it made Canada offer the world’s most easy access to abortion. In the other, the Trinity Western law school case, made religious rights in education a dying phenomenon. These will be covered in the next two editions of this journal.
FN The term “responsible government” describes one in which the cabinet or executive council is responsible to an elected assembly or legislature which in turn is responsible to the electorate. To gain responsible government, the Canadians waged two rebellions in the late 1830s. Prior to this Canada was governed by an executive council and governor appointed from London. Critics see the current Canadian government, in which the appointed courts can overrule the elected legislators, as a seeming restoration of the old British system.