Judicial activism: Justice denied, democracy defied.

"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..., (then) the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal" (Abraham Lincoln, First Inaugural address, March 4, 1861).

Once, the law in Canada was superintended by a "quiet Court in a quiet country." Now, increasingly, it is superimposed by an activist judiciary upon an agitated populace. Three things have fueled this change:

* a collapsing culture that has forfeited its sense of common values;

* a rampant individualism that has gone from rights-consciousness to rights-obsession;

* a judicial elite with a taste for power tinged by gnostic arrogance.

The third is but the latest (and potentially most expensive) of our American imports. To calculate the cost, it requires a perspective wider than distress over particular decisions, however egregious the decisions and however profound the distress.

"Outrageous" distorting of the rule of law

For this perspective, it is important to understand that judicial activism, as it is developing in Canada, subverts democracy, distorts the rule of law, elevates the rights of some over the rights of others, diminishes the common good, and attenuates the capacity for self-governance of an entire people.

Judicial activism--more precisely, judicial hyperactivism-- refers to an overreaching by judges, who evince a deficient respect for, if not cavalier disregard of, the nature, function, purpose, and limits of their calling. This entails a misconception of the judicial role itself. As such, it peculiarly endangers democracy.

The bedrock moral assumption of self-government is the ability of people to apprehend the "law imprinted upon the human heart by nature and nature's God." This is their highest law. It is the sacred flame around which they gather politically to bind themselves, as Edmund Burke said, in a "compact among the living, the dead, and the yet unborn."

To this law, the constitution is inferior, even as it is superior to ordinary positive law. Accordingly, the constitution is the frame of democratic polity, but it is not its sacred flame. Moreover, a Supreme Court is the highest court in the land, but not the highest court of the land. The highest court of the land is the sovereign tribunal of the people, considered as a nation under God, enduring in Burkean terms, and expressing itself, not in random and fugitive public opinion polls, but in cumulative, collective judgements, seasoned over time, consonant with right reason.

When justices confuse the roles of keeper of the frame and keeper of the flame, and when they blur the distinction between the highest court in the land and the highest court of the land, they both betray their oath of office and undermine the very moral foundation of democracy.

Supplanting the law of nature

Additionally, when judges supplant the ultimate law of natural justice with the lower dispensation of constitutional interpretation by judicial decree, they hazard more than demoralization of the democratic ethos. They also risk presenting an image of the rule of law so distorted as to appear ridiculous. This actually obtained when Chief Justice Antonio Lamer, writing in the Sue Rodriguez case, notoriously remarked that the Charter of Rights and Freedoms had rendered Canada a secular society.

Not only was this an inversion of the hierarchy of law by placing positive law above the real lex fundamentalis, but it was also a plain misreading of the Charter itself.

The Preamble of said document acknowledges that "Canada is founded upon principles that recognize the supremacy of God and the rule of law." The order in which the phrases appear has evidently escaped the Chief Justice's notice. Similarly, he seems to have overlooked the initial substantive provision of the Charter, namely Section 2(a), which places first among "fundamental freedoms" the "freedom of conscience and religion."

To guarantee the free exercise of religion strikes one as a curious way to make a society secular. Of course, contra the Chief Justice, the Charter did not "make" Canada anything. It is Canada that has made the Charter. Furthermore, it remains for the judges to apply the Charter, not to invent it as they go along.

Judicial hyperactivism: The Vriend case

Unvarnished judicial invention, however, was exactly the order of the day in the Delwin Vriend case, decided by the Supreme Court of Canada a year ago. It became an instant cause celebre, and is a prime example of judicial hyperactivism displayed by the current court. Vriend was a chemistry teacher at King's University College in Edmonton. The school, citing a conflict between his flaunted homosexuality and its Christian principles, dismissed him. His subsequent human rights suit seemed to have a critical defect: the Alberta Human Rights Code did not protect homosexuality as a prohibited ground for discrimination. Upon appeal, the Supreme Court of Canada was only too ready to supply the defect. It did so by "reading" that right into the Canadian Charter of Rights and Freedoms, and thereupon ordering Alberta to conform its Human Rights Code to the Court's reading of the Charter.

Mr. Justice Frank Iacobucci wrote for the majority. Cognizant of "criticism to the effect that under the Charter courts are wrongfully usurping the role of legislatures", the Justice countered by admonishing critics that "we should recall it was the deliberate choice of our provincial legislatures in adopting the Charter to assign an interpretive role to the courts and to command them to declare unconstitutional legislation invalid." [1]

Secondly, Mr. Justice Peter Cory filed a separate "clarifying" opinion, which claimed that the Charter itself, not the Court, was--to borrow a phrase from another context--"the controlling legal authority." However, the two justices neglected to note that both the provincial legislature that passed the Alberta Human Rights Act, and the Federal Parliament that enacted the Charter of Rights and Freedoms, had rejected "sexual orientation" as a legitimate ground for discrimination.

What the elected representatives at both levels of government had refused to do, hyperactivist judges were only too ready to accomplish. In this instance the judicial distortion was so severe as to render the rule of law completely unrecognizable.

The hubristic dereliction of the justices was fourfold:

1) They overrode the people and the legislature of Alberta;

2) They overrode the Parliament of Canada (the 1982 Charter having deliberately excluded sexual orientation);

3) They laid the basis for further suits against religious bodies which seek to maintain the discipline of their convictions;

4) They elevated sodomy to the status of a constitutional right.

What happened to impartiality?

Many legal commentators would have us believe that the nature of the litigants in a constitutional case is less important than the larger issues involved. That may be, but there are winners and losers. What is more, the respective parties--especially when a clash of rights is before the courts--embody the deeper values at stake. Under such conditions, judges must remain scrupulous to ensure that they embody the judiciary's characteristic principle of impartiality. Excessive and careless judicial activism ill accords with this requirement.

Again the Vriend case is in point. Not only did the Court "read a right" into two different enactments directly contrary to the wishes of the legislatures that passed them, but it also laid the basis for a future attack on the right of school authorities to exercise the first fundamental freedom of the Charter, viz., "freedom of conscience and religion."

Judges now partisans in culture wars

The spectacle of judges as partisan combatants in the cultural wars of the day is as inelegant as it is distasteful. Some seventeen years ago, a majority on either side of the debate over the wisdom and utility of the then pending Charter could not envision any such prospect. The consensus was that the Canadian judiciary, by tradition so circumspect and deferential, would find an activist mode uncongenial.

Some commentators (myself included) disagreed. We argued that Charter litigation would shape as well as reflect judicial attitudes and actions, with the result of a heightened judicial role, albeit one still tempered by tradition and, most importantly, subordinated to the common good. The latter was crucial. The rationale for the Charter was not merely that it would protect the rights of Canadians, but that it would do so consistently with promotion of the common good. Charter jurisprudence, to enjoy legitimacy, must display a quality that, in the document's own words, "can be demonstrably justified in a free and democratic society." In short, government, including the courts, must justify itself to society, not the reverse.

Strayer's folly

If the wording of the Charter makes plain the above, then some credit must go to its drafters of first instance. Foremost among them, according to legal insiders at the time, was a then Justice Department official named Barry Strayer. He is now Mr. Justice Strayer of the Federal Court of Appeal.

The Canadian Constitution, as amended in 1982, protects freedom of discourse in even more encompassing language than does the United States Constitution, as amended in 1791. The First Amendment of the latter guarantees "freedom of speech," whereas Section 2 (b) of the Charter underwrites "freedom of thought, belief, opinion and expression..."

Presumably, the drafters of 2 (b) intended that its application by the courts would match the provision's generous and inclusive wording. But another recent court ruling hardly squares with that intent. Human Life International (Canada) lost its appeal of a denial of registered charity status by virtue of a narrow reading of the Income Tax Act, adverse to a robust exercise of "freedom of thought, belief, opinion and expression." The appellate tribunal was the Federal Court of Appeal. The author of its opinion was Mr. Justice Barry Strayer.

Is the Strayer opinion something that "can be justified in a free and democratic society?" The answer is no.

Does it comport with the letter and spirit of section 2 (b) of the Charter? The answer is no.

Has the judgement restricted the capacity of an honourable organization for full and equal access to public discourse on the gravest of moral issues? The answer is yes.

Given the first three answers, does the decision therefore diminish the common good? The answer is yes.

Reason against judicial imagination

The several opinions from jurists in high places cited above possess a common link and assume a cumulative shape. The common link is a deficit of disciplined legal reasoning combined with a surfeit of indulgent judicial imagination. The real problem, though, runs deeper: judges in thrall to the secularist ideology, a counterfeit belief system implacably inimical to genuine transcendent religion.

The cumulative shape looms as follows: Canada is a secular society by judicial fiat, in which a judicially invented ground of non-discrimination extended to sexual orientation handily trumps an expessed constitutional guarantee of religious freedom. Moreover, those who would protect human life at its most innocent and most vulnerable (such as pro-life groups) must compete upon a playing field tilted in favour of those who would regard the continuance of such life as an option of convenience, such as those who defend abortion.

Sophistry and tyranny

A nation so treated by its judiciary remains sorely tested. But a Canadian nation that fails to rise to the test and does not demand and receive redress, confronts the "worst of both worlds, an American-style policy-making court, with a selection process designed for a court that used to be answerable to parliament." [2] Even more gravely, it "courts" the loss of its capacity for self-governance by submitting to a sophistic tyranny cloaked in judicial robes. [3]

Faced with this dread prospect, impressive forces in the United States are rallying to reassert mastery over their magistrates. Representative of this campaign, as well as indicative of its relevance to Canada, would be the following passage with its deliberate echo of Lincoln's initial presidential oration:

"For our part, we, the people, will do well to remember that every constitutional restraint, textual or judge-made (emphasis added), on the powers of the legislative and executive branches is ipso facto and necessarily a transfer of power to the Court and the courts. We must therefore ask ourselves how much power we want to give the courts, and take what steps we can to limit that power and its proper function." [4]

The end of democracy?

The most sweeping and comprehensive rebuke to the corrosive excesses of American judicial activism has emanated from the American monthly journal of religion and public affairs entitled First Things. In the November 1996 issue, a symposium of distinguished scholars and commentators, led by the astute priest-editor Father Richard Neuhaus, broached the topic as "The end of democracy: the judicial usurpation of politics." An expanded version, which included subsequent critiques, later became a book under the same title.

When the contributors charged that certain derelictions of the United States Supreme Court had cast doubts upon "the legitimacy of the regime," some respondents claimed that they had gone too far. But perhaps it is the Court that has gone too far. Too far in so pushing religious believers to the margins of political life as to create a "naked public square" devoid of effective religious influence. Too far in conferring special constitutional status upon sexual orientation to the detriment of "the age-old police power (of governments) to legislate for the protection of the public health, safety, welfare and morals." [5] Too far by endorsing the abortion trade's private licence to use lethal force against helpless, blameless human beings.

None of these actions by the American judiciary deserves the name of law. Each one, in turn, under Thomistic terms, would be "Non est lex, sed legis corruptio" (not law, but a corruption of law).

By the same token-alas-all these corruptions of law resonate in the "imprudent jurisprudence" of the Canadian judiciary. According to Saint Thomas Aquinas, "Law is an ordinance of reason for the common good promulgated by one who has care of the community." According to today's would-be judicial oligarchs, law is a dictate of sentiment, for the benefit of a few and the gratification of an elite, pronounced by activist advocates of culturally fashionable causes. Only in America, you say? No, also in Canada. Pity. What is worse-more's the pity-the Canadian judiciary increasingly imposes this private agenda to the detriment of public morality by further eroding the religious foundation of the law that governs an historically Christian nation.

Footnotes:

(1.) David Vienneau, 'Politicians Gave Judiciary Its Added Power,' The Toronto Star, April 4, 1998, p. 15.

(2.) Professor Ted Morton, quoted in Shafer Parker, Jr., 'A Politician on the Bench,' Western Report, March 2, 1998, pp. 6-7,@ p. 6.

(3.) See, for example, Lome Gunter, "And Now, the Dictatorship of the Courts," a review of Christopher P. Manfredi, Judicial Power and the Charter, Toronto: McClelland and Stewart, 1993, in Western Report, October 25, 1993, p. 42.

(4.) Francis Canavan, S.J., "That Eminent Tribunal," First Things, August/September 1998, pp. 34-39,@p.35.

(5.) Ibid., p.38.