Against Judicial Activism: The Decline of Freedom and Democracy in Canada.
"As man depends absolutely upon his Maker for everything, it is necessary that he should, in all points conform to his Maker's will. This will of his Maker is called the law of nature ... This law of nature being coeval with mankind and dictated by God himself, is, of course, superior in obligation to any other. It is binding over all the globe, in all countries and at all times: no human laws are of any validity, if contrary to this, and such of them as are valid derive all of their force and all of their authority mediately or immediately from this original."--Sir William Blackstone, Commentaries on the Laws of England
Unless one has lived under a rock for the past three years, there was no way to have missed out on the Canadian Supreme Court's most recent example of egregious judicial activism--that of redefining marriage to include "same-sex marriage." This latest addition to an ever-growing list of judicial usurping of Canadian law is examined thoroughly in Against Judicial Activism.
The book is an instantly invaluable tool for those studying Canadian human rights and constitutional law as well as history (but also a great reference tool for the rest of us). It takes us through the twists and turns and the unpredictability of cases and decisions brought before appeals courts and human rights tribunals, like the above retooling of the age-old institution of marriage, that repeatedly demonstrate the departure of our judges from hundreds of years of tradition of judicial restraint and into activism solely motivated by their ideological preferences.
In chapters one through three, Leishman makes it clear that Canadian jurisprudence took a serious turn from the norm--i.e., the rule of law based upon the building up of precedent--when the Charter of Rights was introduced. In example after example, the line of the "separation of powers between the legislative and judicial branches of government" is increasingly blurred.
Striking evidence is examined in many cases, including the Sue Rodriguez case of "the right to die" by assisted suicide; the Surrey, B.C. School Board case which allowed access to "gay"-positive literature for pre-school and school-aged children; and the well-known Scott Brockie and Chris Kempling cases both of which pitted the freedom of religion against homosexual rights. All of these point to a new and unsettling trend in judicial activism--the rights of one group trump the rights of the other.
The most compelling of these cases is 1996's Trinity Western University (TWU) v. the British Columbia College of Teachers (BCCT). "The case centered on the refusal of the College to approve a full education program at TWU on the ground that students attending TWU are required to uphold the discriminatory view that all sexual relations outside of marriage, including homosexual sexual relations, are sinful. In an eight-to-one ruling on 17 May 2001, the Supreme Court of Canada held that by refusing to accredit a full education program at TWU, the College of Teachers violated the right of students at the TWU to freedom of religion." Leishman enumerates the various religious and academic groups that applauded this decision, including the counsel of the Canadian Conference of Catholic Bishops, who "laud(ed) it as a 'strong affirmation and much needed reminder that freedom of religion is a fundamental human right and public freedom that is guaranteed by the Canadian Charter of Rights and Freedoms ...'"
Leishman points out, however, that perhaps such enthusiasm is not warranted given a closer examination of the decision. Two rather startling points came out of the TWU decision; the first being the court's assertion that "homosexual behaviour is as central to the personal identity of gays and lesbians as religious practices are to the religious identity of the faithful." The second point according to one of the Chief Justices was that "the freedom to hold beliefs is broader that the freedom to act on them." Or as Professor Ian Hunter at the time paraphrased this (quoted in the book from a Globe and Mail column in response to the ruling): "You are free to be hearers of The Word but not doers; you may render unto God when on campus but only to Caesar off campus. By their deeds no one shall know them."
The climax of the book is found in Chapter Seven, entitled "The Chief Justice Defends Judicial Supremacy." Not only does Leishman give Chief Justice Beverley McLachlin the first word by using her own definitions of judicial activism, he gives her ample opportunity to clarify her activist bent by closely examining a number of her speeches and articles focusing on the question of judicial power. He examines one of her favourite comparisons of judicial interpretation of the Constitution and the Charter as a "living tree." This is in harmony with that other widely held view, that morality "evolves." Leishman argues that a constitution cannot indeed be "subjected to a fixed and frozen interpretation," nor can it be interpreted to one's personal whims or tastes.
Further in the chapter, Leishman compares McLachlin's attitudes to those of a U.S. Supreme Court Justice, Antonin Scalia, whom he quotes thus, "Perhaps the most glaring defect of Living Constitutionalism ... is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution ... What is it that the judge must consult to determine when and in what direction, evolution has occurred?"
The final chapter, "Reviving Parliamentary Democracy" (which could be subtitled, "Parliament Grows a Backbone") offers some sound solutions to the problem of judicial activism, based on the thinking of Conor Gearty, a law professor and director of the Centre for the Study of Human Rights at the London School of Economics. Gearty's lecture is entitled "What Are Judges For?" Among Gearty's suggestions for judicial reforms are: confirmation hearings for potential judicial candidates; readily available advice on public policy for judges provided by Parliament; accountability of judges provided by Parliament; and the use of the notwithstanding clause by Parliament when necessary. Let's hope our parliamentarians all have a copy of this invaluable book.
REVIEWED BY ELENA REPKA
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|Article Type:||Book review|
|Date:||Nov 1, 2006|
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