Supreme danger.

For every Canadian law professor who ventures even a mild public criticism of our judicial masters, there is a platoon of academics notable for sycophancy. One honourable exception is my former Western Law colleague, Professor Robert Martin.

McGill-Queens University Press has recently published Martin's latest book, The Most Dangerous Branch (2003), in a handsome and affordable paperback edition.

In 1962, Professor Alexander Bickel of Yale University Law School wrote a famous study of the U. S. Supreme Court called The Least Dangerous Branch. Martin's title reversal suggests that over four decades the judiciary has become more dangerous than either the executive or legislative branches of government. In this, as in much else in his diffuse, thought-provoking polemic, Martin is surely correct.

His thesis is summed up by his subtitle: "How the Supreme Court of Canada has Undermined Our Law and Our Democracy."

Constitutional democracy is an intricate web of structures and processes, of law and custom, of rule and informal precedent. It is Martin's contention that the Supreme Court of Canada, by its overweening arrogation of authority in matters beyond its proper business, has destroyed the possibility of constitutional democracy. "As someone who is committed to the maintenance of constitutional democracy," Martin writes, "... I cannot avoid seeing the Court as a collection of arrogant and unprincipled poseurs, largely out of control." Hardly the language one is accustomed to hearing from most legal academics.

"The Supreme Court of Canada manipulated the evidence before them to arrive at the desired result. Then they wrote a judgment which tried to lend a fig-leaf of legality to their preconceived conclusion."

Martin's book is full of examples of the Supreme Court doing that. But the above quote is not from Martin; the speaker here was none other than the principal architect of our imperial judiciary, Pierre Elliott Trudeau, proving, I suppose, that just as the devil can quote scripture, so, occasionally, even politicians and judges--increasingly indistinguishable one from another--in an unguarded moment can let slip a bit of truth.

Professor Martin's analysis extends beyond the judiciary.

His starting point is that Canada is in the grip of "... a pervasive and stifling orthodoxy." Call it liberalism, call it relativism, postmodernism, call it what you like, its defining attribute is to deny the existence, even the possibility, of truth.

Martin writes: "In orthodox scholarship and judging, there is little need for proof of anything. If I feel that something is true, then it is. The very notion of truth is chimerical; since there is no truth, all ideas, hypotheses, and assertions are, by definition, equal.... Discriminating amongst ideas is seen to be as invidious as discriminating amongst human beings." If relativism is our secular religion, judges our high priests, then the Charter of Rights is our holy writ. In meaningless generalities, the Charter enunciates rights, and then empowers the Courts to tell us what they mean. Alas, Canadians seem content to live under a judicial tyranny; even our newly-elected Conservative government has promised not to invoke the Charter's "Notwithstanding" clause on abortion, same-sex "marriage," and similar issues.

When Senator Eugene Forsey, one of the truly grand old men of Canadian politics (a founder of the C.C.F. party), first saw the Charter, he predicted it would become "... a field day for crackpots ... a headache for judges ... and a goldmine for lawyers." Forsey's words were prophetic, except that he got it wrong about the judges: the Charter did not give them headaches, it gave them unchecked power.

Ian Hunter is Professor Emeritus from the Faculty of Law at Western University in London, Ontario.