Democracy and religion beyond judicial activism.

... in cases where constitutional issues are involved, it is important that nothing be said that is unnecessary. (1)

This admonition from Patrick Kerwin, Chief Justice of the Supreme Court of Canada from 1954 to 1963, calling for judicial restraint, seems almost quaintly scrupulous during this time of rampant judicial activism. 'Rampant judicial activism' sounds grave enough, but it inclines to governmental deformities yet more dire. Even in a purportedly self-governing polity, judicial activism, if unchecked, ultimately leads to judicial supremacy. In turn, judicial supremacy can escalate into judicial tyranny.

A triple threat to democracy and religion

The Canadian judiciary now presents a three-fold threat to democracy and religion. First, there is the judiciary's drive to constitutionalize same-sex 'marriage', which, parenthetically, is the corollary of the Canadian Supreme Court's decision to constitutionalize sodomy. Second, there is the concomitant judicial potential to criminalize criticism of homosexuality.

Third, the Supreme Court of Canada has currently opened another front in the war against Canadian self-government. It has accomplished this feat with its ruling Doucet-Boudreau v. Nova Scotia (Minister of Education). This third front, substantially obscured by the furor over the first two campaigns, may well represent the greatest danger of all. At any rate, it is arguably the most far-reaching in its potential consequences.

A conventional Charter case

On its face, Doucet-Boudreau seems a rather conventional Charter of Rights case. For one thing, it involved an enshrined Charter guarantee: the right to French-language schools. For another, the standard of justification for their establishment was both constitutionally authorized and empirically demonstrable: 'where numbers warrant'. The case appeared to offer little opportunity for the judicial 'creativity' that has characterized, for instance, 'sexual orientation' litigation. One has learned, however, never to underestimate the dexterity of our judiciary in its quest for self-aggrandizement. In this respect, the trial court judge, Arthur LeBlanc, was not to be found wanting. The right to, and the need for, the French-language schools having been established at trial, the responsible public officials were bound to comply. If they failed to do so, then further litigation would afford a remedy.

Judge LeBlanc was not content to leave matters to such an established practice. Instead, the trial court judge ordered periodic hearings before him, at which Nova Scotia public administrators would report, for his scrutiny, their progress in establishing the institutions in question. The Nova Scotia Court of Appeal subsequently overturned this imposition by the trial court of a continuous juridical supervision of the administrative process, ruling that the trial judge had transgressed the proper bounds of judicial authority.

The case then went to the Supreme Court since, by this time, the schools had been built, the question before the Supreme Court was whether it agreed with the Court of Appeal that Judge Arthur LeBlanc had exceeded his juridical authority.

A court out of order

On November 6, 2003, the Supreme Court handed down its decision: by a vote of 5 to 4, it overturned the decision of the Nova Scotia Court of Appeal, thus affixing its constitutional seal of approval on the trial judge's order. In doing so, it overstepped its bounds in an audacious manoeuvre to arrogate more power to the courts on their march to judicial supremacy. All of this was done in direct defiance of wise and well-established standards of judicial circumspection.

The salutary canons of restraint urged upon a non-elected judiciary by Chief Justice Patrick Kerwin are these:

If it is not necessary to decide a case, then it is necessary not to decide it. In other words, if the facts that brought about a given suit are no longer operative, then a court should regard the issue as moot, and therefore refrain from rendering any judgment. The factual situation that gave rise to Doucet-Boudreau--the need to establish constitutionally-required French language schools in a section of Nova Scotia where numbers would warrant--no longer pertained at the time of the high court's decision, since the schools had already been built. In the words of Lorne Gunter:

As if to add insult to injury, the Supreme Court ruled on Doucet-Boudreau, even though the case was moot--another activist practice judges are increasingly engaging in ... In an earlier, more judicially sensible time, the justices would have refused to hear the case. The facts were no longer current; the damage had been repaired. Only a meddlesome court would still feel the need to pontificate, and that is what Canada has--a very meddlesome Supreme Court. (2)

Even in a case that warrants judgement, 'it is important that nothing be said that is unnecessary.' In Doucet-Boudreau the Court did not express itself briefly. The Court's five-member majority, with two justices speaking on its behalf, delivered a full-blown opinion. The four-member minority, also speaking through two justices, responded in a full-blown dissent.

Slender court majorities should not undertake bold departures in the law. The slender margin of decision did not deter the majority from embarking upon a bold departure in Canadian constitutional law. It endorsed the novel action of the trial court judge, who imposed 'reporting hearings' upon the provincial government to prove its compliance with his order to build French-language schools.

Slender court majorities should not render sweeping opinions in support of bold legal departures. However, the slender margin of decision in Doucet-Boudreau did not deter the majority from lifting the lid on a Pandora's Box regarding the extent of the superintendency of the judiciary in the implementation of its rulings. According to Patrick Monaghan, Dean of the Osgoode Hall Law School, the case "seems to open the door to the judiciary in a supervisory role in relation to government. It's not clear what the limits on this might be, because if it's appropriate in this case it might be appropriate in other cases." (3)

When the two lower courts are divided in deciding a case, a final appellate tribunal, such as the Supreme Court of Canada, should accord at least due deference to the judgment of the higher of the two. Prior to adjudication by the Supreme Court of Canada, two courts in Nova Scotia had pronounced on Doucet-Boudreau v. Nova Scotia (Minister of Education). In addition to the ruling at trial by Justice Arthur LeBlanc, there was the decision, on appeal, by the Nova Scotia Court of Appeal that struck down the trial judge's reporting orders. The Canadian Supreme Court then sided with the lower court rather than with the higher one.

In Doucet-Boudreau, Canada's highest court went '0-for-5' against the catalogue of constraints adduced above. Beyond the anomalies already cited, the case featured another aspect that, given the potential magnitude of its judgement, represented something of an oddity. Of the five-member majority, only four were still on the Court when the decision came down. Charles Gonthier, who participated in the hearing of the case, had retired by the time of its announcement. Although this was not an irregularity in itself, it did highlight the narrowness of the margin upon which the case turned.

Another procedural point worthy of note: Chief Justice Beverly McLachlin, although a member of the majority bloc, left its opinion to the co-authorship of Justices Frank Iacobucci and Louise Arbour. This strikes one as somewhat strange, especially given the institutional ramifications of the case, a matter usually of special concern to a Chief Justice.

A joint dissent

This issue, however, received direct and forceful attention in the joint dissent of Justices Louis LeBel and Marie Deschamps. In their view, the action of the trial judge, as accorded constitutional sanction by the majority, "would tend to politicize the relationship between the executive and the judiciary ... Courts should not unduly encroach on areas which should remain the responsibility of public administration and should avoid turning themselves into managers of the public service." (4)

An editorial in the National Post entitled 'Judicial Rule' echoed the remarks of the dissenters:

... the Court's ruling in Doucet-Boudreau v Nova Scotia (Minister of Education) violates the separation of powers between the judicial and legislative branches of government, marks a dangerous intrusion into the political sphere and potentially imperils our traditions of responsible government. (5)

If the Supreme Court of Canada could thus eventually preside over an administrative bureaucracy of the bench, then Canada would suffer under nothing less than judicial supremacy.

The seeds of tyranny?

More remotely, is there a prospect that looms even beyond judicial supremacy? With what must certainly be unintended irony; the majority opinion in Doucet-Boudreau gave voice to this prospect. If the courts, according to Justices Iacobucci and Arbour, are not granted a continuous supervisory role over the administration of their decrees, then the 'seeds of tyranny' can take root. (6) One would argue to the contrary: the 'seeds of tyranny'--judicial tyranny--lurk in that very opinion itself. To 'take root' they only require a little tending. Former Chief Justice Antonio Lamer appears all too ready to serve as the judicial gardener. Just prior to the delivery, of the decision in Doucet-Boudreau, Canada's sixteenth Chief Justice unburdened himself of another one of his bizarre off-the-court pronouncements. (For an earlier example, which occurred while he was still Chief Justice, see Chapter III of Judicial Activism (2003), Alphonse de Valk c.s.b., ed., pp. 35-40.) In an interview with Can West News, the retired jurist allowed that numerous previous Supreme Court judgments are so 'obsolete' as to warrant overruling in fresh cases. As the reasons for this obsolescence, Mr. Lamer allowed that 'society has evolved', a determination which he evidently believes the judiciary is competent to make. (7) Yet the Canadian government's official introduction of the Charter of Rights and Freedoms to the public in 1982 expressly consigned such determinations to legislators rather than to judges. (See this writer's Letter to the Editor, "The Charter then and now," Catholic Insight, Oct. 2003.)

If the majority in Doucet-Boudreau would appoint the judiciary as chief supervisor of governmental operations, then Mr. Lamer would anoint judges as the sovereign heralds of societal 'evolution'. As the recent Catholic Insight book has warned in its very title, 'judicial activism' constitutes 'a threat to democracy and religion'. When the warning signal extends to judicial supremacy, that threat becomes a clear and present danger. When the warning signal finally reaches judicial tyranny, that clear and present danger becomes a mortal peril. Where does the warning signal now hover in Canada? If you read the majority opinion in Doucet-Boudreau v Nova Scotia (Minister of Education), you can perceive a signpost of judicial supremacy. If you listen to former Chief Justice Lamer, you can hear the tocsin of judicial tyranny.

Footnotes:

(1.) Switzman vs. Elbling, [1957] S.C.R. 285, at 288.

(2.) National Post, Nov. 20, 2002,. p. A16.

(3.) Ibid. Nov. 7, 2003, p. A1.

(4.) Ibid. Nov. 7 20003, p.A9.

(5.) Ibid. Nov. 5, 2003, p. A15.

(6.) Ibid. Nov. 7, 2003, p. A1.

(7.) Ibid. Nov. 20, 2003, p. A16.

Edward McBride is Emeritus Professor of Political Science, St. Mary's University, Halifax, N.S. His previous two articles in 1999 dealt with the same subject as here.