National Post

Saturday, April 17, 1999

Top judges not really so activist, survey says
Governments Often Win

Janice Tibbetts
Southam News


Tom Hanson, The Canadian Press / Justice John Major in his office.

TORONTO - The Supreme Court of Canada is more likely than not to quash challenges brought under the Charter of Rights and Freedoms, ruling instead for governments two thirds of the time, concludes a survey released yesterday at a conference on the high court.

The study, which examined constitutional cases throughout the 1990s, also found that Justice John Major is the most "activist" judge on the bench, and the only one who has ruled more for Charter claimants than governments. Chief Justice Antonio Lamer was a close second.

The study, which built upon results released last week showing there was little evidence that judges in the top court aggressively strike down laws, concluded that in 250 constitutional cases between 1991 and 1998, judges sided one third of the time with people who claimed their Charter rights were violated.

"There's a lot of concern about judge-made law and the upshot of my analysis is that it's not excessive or out of control," said Patrick Monahan, a Osgoode Hall law professor and author of the study.

Supreme Court watchers attending a York University conference on constitutional cases were at odds, however, over whether results of the study indicate that the court is still too often overriding legislators.

"Charter claimants are still winning in one in three cases and that's a significant success rate," said Ted Morton, one of the country's leading opponents of judges striking down legislation.

Prof. Morton, a University of Calgary political scientist and the Reform party's elected senator-in-waiting, condemned Prof. Monahan's study for only dealing with constitutional cases and therefore did not give the entire picture on how much the court interferes.

"The court's activism is selective, not general," said Prof. Morton, who added that his own observations have shown the court tends to rule against governments on women's issues, aboriginal issues, and gay rights.

Prof. Monahan's survey, on the other hand, dealt with Charter challenges involving everything from police searches to freedom of expression and human rights.

It's the second study to be released this week that challenges the notion that the court tends to trample over the will of elected politicians.

Judge Major, formerly of the Alberta Court of Appeal, was the only judge who sided with Charter claimants more often than not last year, ruling in their favour in 11 of the 16 cases in which he was involved.

Since 1991, he also led the bench, siding with them 43% of the time.

Justice Claire L'Heureux-Dube, of Quebec, who has been widely perceived as being the most activist judge on the bench, was the least likely to rule that Charter rights had been broken, ruling so in only 19% of cases since 1991.

Chief Justice Antonio Lamer, also from Quebec, was a close second behind Judge Major, ruling that Charter rights had been violated 39% of the time.

Copyright Southam Inc.