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Chief Justice Brian Dickson.

Former Chief Justice Brian Dickson of the Supreme Court of Canada was not just an excellent and hard working lawyer. He was also a devoted husband and father, a generous philanthropist, and a war hero who lost a leg while serving with the Canadian armed forces during the Second World War.

In Brian Dickson: A Judge's Journey, Justice Robert Sharpe of the Ontario Court of Appeal and Prof. Kent Roach of the University of Toronto Law School relate that, when Dickson retired as chief justice in 1990, "he was revered in the legal community as a judge of exceptional ability." His colleague, former Justice Claire L'Heureux Dube, hailed him as "the greatest Chief Justice of all times."

That judgment was completely wrongheaded. Despite his many praiseworthy virtues, Dickson was the worst Chief Justice in the history of Canada. He ended up subverting the very laws and the constitution he had sworn to uphold.

Such was the sorry outcome of a once promising career. When first appointed to the Supreme Court of Canada in 1973, Dickson was an admirably restrained, law-abiding jurist. He understood that, as a judge, he had a duty to set aside his personal policy preferences for the purpose of upholding the law as duly enacted and defined by precedent.

Dickson demonstrated his commitment to upholding the proper role of the judiciary in 1974, when Dr. Henry Morgentaler first came before the Supreme Court of Canada for flouting the limited restrictions on abortion then in the Criminal Code. Counsel for Morgentaler called upon the Court to acquit the abortionist and strike down the abortion law on the fanciful ground that it violated the right of women "to life, liberty (and) security of the person" in the Canadian Bill of Rights.

Dickson would have none of this argument. In a judgment written for the Court, he maintained: "Whether one agrees with the Canadian legislation or not is quite beside the point. Parliament has spoken in clear and unambiguous language.... Justice must be done within the framework of, and according to, the rules set out in the Criminal Code." On this basis, Dickson consigned Morgentaler to jail.

Just 12 years later, Morgentaler was back before the Supreme Court of Canada on the same charge. And his counsel advanced virtually the same argument, contending that the abortion law violated the right of a woman to "life, liberty, and security of the person" in s. 7 of the Charter.

In a complete turnaround, Dickson now bought this specious argument. In 1988, he joined a majority of the Court in acquitting Morgentaler and striking down all protection in the Criminal Code for the lives of children in the womb.

In a withering dissent in this same case, Justice William McIntyre denounced this outrageous distortion of the law by his judicial colleagues. "It is for Parliament to pronounce on, and to direct, social policy," he insisted. "This is not because Parliament can claim all wisdom and knowledge, but simply because Parliament is elected for that purpose in a free democracy and, in addition, has the facilities--the exposure to public opinion and information as well--as the political power to put in effect its decisions."

In this ongoing dispute over the proper role of the judiciary in a democracy, Sharpe, Roach and the great majority of law professors and judges line up in support of law-changing judicial activists like Dickson. Most lawyers relish the increased influence that unelected judges have conferred upon the legal profession, by usurping legislative power from elected representatives of the people in Parliament and the provincial legislatures.

Granted, there still are some eloquent exponents of parliamentary democracy within the legal profession. Prominent among them is Prof. Robert Martin of the University of Western Ontario Law School. He vigorously excoriates judicial activists and their apologists in his latest book, The Most Dangerous Branch: How the Supreme Court of Canada Has Undermined Our Law and Our Democracy.

What can be done about the judicial subversion of democracy in Canada? Martin somberly concludes: "Absolute power, in Lord Acton's aphorism, corrupts absolutely, and the Supreme Court is now absolutely corrupt. This distressing situation will exist only so long as Canadians continue to tolerate it, and Canadians are probably the most tolerant people on earth. But there is no virtue in tolerating the intolerable."

Rory Leishman lives in London, ON. Home page:
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Title Annotation:Columnist
Author:Leishman, Rory
Publication:Catholic Insight
Date:Feb 1, 2004
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