6 May 2006
By Rory Leishman
For this session, we have been asked to ponder the role of courts and judges in modern democracies. I submit that the answer is straightforward: The proper role of courts and judges in any genuine democracy, ancient or modern, is to uphold the law, not to change the law.
What, though, has the Supreme Court of Canada done? In case after crucial case over the past 25 years, the judicial activists who have taken over control of the Court have legislated from the bench. And in so doing, they have demonstrated their supreme contempt for both democracy and the rule of law.
Chief Justice Beverley McLachlin and other likeminded judicial activists resent such charges. In an extraordinary obiter dictum in Vriend v. Alberta, 1998 SCC, Mr. Justice Frank Iacobucci denounced the Court’s critics. He lamented:
It seems that hardly a day goes by without some comment or criticism to the effect that, under the Charter, courts are wrongfully usurping the role of the legislatures. I believe this allegation misunderstands what took place and what was intended when our country adopted the Charter in 1981-82. When the Charter was introduced, Canada went, in the words of former Chief Justice Brian Dickson, from a system of parliamentary supremacy to constitutional supremacy.Note that Iacobucci invoked the authority of a former chief justice as authority for his suggestion that the Charter supplanted parliamentary supremacy with constitutional supremacy. He did not, and could not, cite any supporting evidence from the words of Prime Minister Pierre Trudeau or of any of the other federal or provincial leaders who debated and approved the Charter.
Robert Hawkins, President of the University of Regina, is an authority on the legislative history of the Charter. In a jointly written paper entitled "Democracy, Judging and Bertha Wilson," he and his co-author, Robert Martin, emeritus professor of law at the University of Western Ontario, reviewed the stated purposes of legislators in enacting the Charter. Hawkins and Martin concluded:
The legislators who entrenched the Charter in the Constitution had no intention of abandoning the doctrine of parliamentary supremacy in favour of a doctrine of aggressive judicial review. They never intended to pass the legislative torch.Regardless, judicial activists on the Supreme Court of Canada have seized the legislative torch on the pretence of upholding the Charter. In Egan v. Canada, 1995 SCC, they read sexual orientation into the equality rights provisions of section 15 of the Charter, despite the fact that the Joint Committee of the Senate and the House of Commons on the Constitution had voted 22 to two to exclude sexual orientation from the enumerated grounds in section 15. Then, in Vriend, the Supreme Court of Canada cited its illegitimate ruling in Egan as authority for reading a ban on discrimination on the basis of sexual orientation into the Alberta Human Rights Act in express defiance of the repeated opposition of the Alberta Legislature.
Most liberals applauded the Egan and Vriend rulings. They were pleased when the Supreme Court of Canada struck down the law on abortion in R. v Morgentaler, 1988 SCC, and they were delighted when the Court directed in M. v. H., 1999 SCC that Parliament and the provincial legislatures must amend the traditional, legal definition of spouse in literally hundreds of federal and provincial laws to include same-sex couples. But most of these same liberals were dismayed by the ruling last spring in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, that imposed two-tiered medicare on Quebec.
Proponents of democracy and the rule of law -- be they liberals, conservatives or socialists -- should be more consistent: Whether they like or dislike the outcome of judicial activism in a particular case, they should insist that judges have no right whatsoever to usurp legislative powers, by changing established principles of the law and the Constitution through judicial interpretation.
In a speech to the Canadian Club of Toronto entitled "Judging, Politics, and Why They Must Be Kept Separate,” Chief Justice McLachlin contended that those who accuse the Supreme Court of Canada of usurping legislative powers misunderstand what judges do. She said:
The reality comes down to this: Parliament and the legislatures are the supreme arbitrators of the social course of the nation, subject only to the constraints imposed by the constitution and its traditions … The aim of the judicial role … is to interpret the laws that our common law tradition and the legislators have put in place.Is that right? If all judges truly aim to uphold the laws that our common law traditions and the legislators have put in place, then it must be said that McLachlin and her like-minded colleagues are in urgent need of a judicial eye examination. Just a few days prior to McLachlin’s Canadian Club speech, a three-judge panel of the Ontario Court of Appeal unanimously declared in Halpern et al. v. Attorney General of Canada et al., 2003 OCA:
We reformulate the common law definition of marriage as 'the voluntary union for life of two persons to the exclusion of all others.'With this ruling, the Ontario Court of Appeal brazenly repudiated the law on marriage that our common law traditions and the legislators of Canada had put in place. In the Reference re Same-Sex Marriage, 2004 SCC 79, McLachlin and her colleagues on the Supreme Court of Canada did the same: They unanimously repudiated the traditional definition of marriage enshrined in both the common law and section 91(26) of the Constitution. In response to Senator Anne Cools and others who had argued that the Court should uphold the Constitution as enacted and originally understood, the Court said such “frozen-concepts” reasoning
runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.Here we come to the nub of the dispute: McLachlin and other like-minded, judicial activists regard the Constitution of Canada as a living tree that they, the judges, can change by progressive interpretation in any way that they see fit to accommodate and address their understanding of the realities of modern life. Sir William Blackstone held a decidedly different view. In his magisterial Commentaries on the Laws of England, he insisted that in the case of statutes, the rule for judicial interpretation must not be the will of the judge but the will of the legislator. He said:
The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made.In Federalist No. 78, Alexander Hamilton likewise affirmed that the judicial power is not superior to the legislative power under the Constitution of the United States. Rather, both are subordinate to the will of the people. Hamilton explained:
where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.Judicial activists disagree with Blackstone and Hamilton. They have arrogated to themselves the right to substitute their own will for the will of the people as enshrined in the laws and the Constitution. And in defence of this high handed practice, Chief Justice McLachlin argues that majority rule unbridled by the courts
offers no protection against the tyranny of the majority.What can be said for such judicial hubris? Judicial activists like McLachlin subscribe to the authoritarian view that unelected judges are better qualified than elected legislators not only to interpret and uphold the laws, but also to enact and amend laws in relation to minority rights. There might be some justification for this viewpoint if judges were uniquely qualified to discern the truth about the multifarious ramifications of abstract rights. But that is obviously not the case. Judicial activists on the Supreme Court of Canada, no less than their counterparts in the United States, have repeatedly demonstrated that they cannot agree among themselves on the application of rights to particular issues such as search warrants, voting rights for prisoners, pornography laws and assisted suicide. In the chaotic 1988 Morgentaler ruling by the Supreme Court of Canada, the seven judges who heard the case split no fewer than four ways. Like the rest of us, judges often can and do differ in good faith over the nature of rights and their specific applications. How, then, do judges on the Supreme Court of Canada resolve these disputes? By majority vote, of course.
Jeremy Waldron is a professor of Law at Columbia University and an unabashed democrat. He persuasively argues in his treatise on Law and Disagreement that the definition of rights should be settled by a majority vote among elected representatives of the people in the legislative branch of government,  not by “a nine man junta clad in [scarlet] robes and surrounded by law clerks.”
Judges in any democracy have a duty to respect the separation of legislative and judicial powers. They should uphold the law as contained in valid precedents, statute laws and the Constitution. They should make only marginal adjustments, at most, to accommodate the law to changing social and economic circumstances. Thus, in the 1932 Radio Reference, the Judicial Committee of the Privy Council awarded jurisdiction over radio transmissions to Parliament on the basis of the analogous authority over telegraphs and other interprovincial ‘undertakings’ that is conferred on Parliament in s. 92(10)(a) of the 1867 Constitution of Canada Act. In this way, the court applied the original understanding of the Constitution to the changed circumstances occasioned by the invention of the radio.
In contrast, judicial activists like McLachlin have no compunction about making radical changes to common law rules, statute laws and the Constitution. And in doing so, they routinely also defy their own precedents. In the judgment last December in R. v. Labaye, 2005 SCC 80, McLachlin obliterated the law on indecency in the Criminal Code. In a scathing dissent, Justices Michel Bastarache and Louis Lebel pointed out that the majority was:
departing from the case law of this Court and proposing a new approach to indecency that is, in our view, neither desirable nor workable. It constitutes an unwarranted break with the most important principles of our past decisions regarding indecency.Note the implications of this charge. In the classic formulation of A. V. Dicey, the rule of law means
the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power.In Labaye, McLachlin proceeded with the support of a majority of her colleagues to overturn the regular law on indecency and in a singular act of arbitrary power, to legalize group sex in a public place. In this way, the judicial activists on the Supreme Court of Canada not only violated democracy but also transgressed the rule of law.
What can be done to curb these arrant judges? Invocation of the notwithstanding clause of the Constitution is an obvious remedy, although it applies only to section two and sections seven to 15 of the Charter. The Labaye ruling was not based on any section of the Charter: Chief Justice McLachlin and the majority of her colleagues presumed to change the law entirely on their own authority. However, in all such cases, Parliament has another option: It retains full authority under the Constitution to summon judicial activists before the bar of Parliament and to hold them to account for their naked exercise of raw judicial power.
But alas, the elected representatives of the people of Canada in Parliament and the provincial legislatures show no disposition to defend their authority from judicial attack. The Harper Conservatives, like their Liberal and Conservative predecessors, have renounced virtually all use of even the notwithstanding clause. Who can blame them? Most Canadians have lost the will to govern themselves. They are so mesmerized by the Charter and overawed by the courts that they are content to have our elected legislators surrender their lawful democratic powers to an elite of self-appointed judicial lawmakers.
What we need in Canada is a democratic leader with the insight and spirit of Abraham Lincoln. In response to the Dred Scott ruling that struck down a federal law to protect fugitive slaves, Lincoln did not just throw up his hands in despair on the nonsensical ground that the Constitution is whatever the Supreme Court says it is. Instead, in his first inaugural address, he defended democracy from judicial abuse, declaring:
The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers.By Lincoln’s standard, we, Canadians, have ceased to be our own rulers. In defending democracy, Lincoln did not advance any complex constitutional arguments. Instead, in words that Canadian ought seriously to ponder, he simply asked:
Why should there not be a patient confidence in the ultimate justice of the people? Is there any better or equal hope in the world?(Rory Leishman is the author of Against Judicial Activism: The Decline of Freedom and Democracy in Canada (McGill-Queen’s University Press: 2006)
 See Minutes of the Proceedings and Evidence of the Special Joint Committee of the Senate and the House of Commons on the Constitution. Issue 48, First Session of the Thirty-Second Parliament, 1980-81, 29 January 1981.
 For the text of this speech, see Beverley McLachlin, "The Judiciary's Distinctive Role in our Constitutional Democracy," Policy Options, September 2003.
 Sir William Blackstone, Commentaries on the Laws of England (Chicago: University of Chicago Press 1979), 59.
 McLachlin, ”The Judiciary's Distinctive Role.”
5] Jeremy Waldron, Law and Disagreement (Oxford: Clarendon Press, 1999), 15.
 Waldron in an unpublished speech.
 A. V. Dicey, Introduction to the Law of the Constitution (Indianapolis: Liberty Fund, 1982), 120.