National Post

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Saturday, July 24, 1999

Antonio Lamer, the Chief Justice, says politicians duck divisive issues, leaving the Supreme Court to legislate in areas such as abortion and assisted suicide. But critics suggest the court regularly stomps on the will of a democratically constituted Parliament, leading many Canadians to wonder . . .

Who runs Canada?

The tug of war between Parliament and the Supreme Court is becoming thornier as judges become more openly political, observers contend

Neil Seeman
National Post


Richard Johnson, National Post
( Caricature of Jean Chretien and Antonio Lamer)

Who is governing Canada? Is it an elected Parliament, or is it the nine Justices who sit on the Supreme Court? "There is enormous confusion in the public mind as to the distinction between the legal and the political," states Senator Anne Cools, who has been wrestling with this question for most of her professional life.

The senator sees it as a tug of war which gets ever thornier, with judges becoming more and more crassly political. Consider Madam Justice Louise Arbour. Her involvement at the war crimes tribunal was "explicitly political," says Sen. Cools.

The original Judges Act, instituted in 1905, was meant to ensure the non-corruptibility of judges by protecting them from political embroilment. It thus explicitly forbade judges from involvement in political activities. Today, a special exemption has been made for Louise Arbour. The so-called "Arbour amendment" clause authorized Judge Arbour to engage in "political work" at the United Nations Commission on war crimes at the Hague. It has the distinction of being the only Canadian statute that mentions a judge by name.

Judge Arbour serves as a good introduction to the workings of the Supreme Court. Before she fills her seat on the Supreme Court of Canada in September, Judge Arbour's first duty, after nearly two years of zigzagging across the Balkans chasing ravagers, despots and assassins, is to attend summer school for federal judges. One of her mandatory courses at the National Judicial Institute this summer will be in "gender sensitivity."

Judge Arbour's study materials will include a section on the definition of "equality," prepared by Shelagh Day and Gwen Brodsky, two feminist who helped found the Women's Legal Education Action Fund (LEAF).

"The whole course is rife with feminist propaganda," observes Gwen Landolt, the president of REAL Women of Canada, a conservative women's group.

Ms. Landolt believes this is but one example of the many clandestine ways in which a left-wing, feminist and intolerant bias creeps into the judgments of the Supreme Court. She mocks a recent interview by Antonio Lamer, the Chief Justice, in which he insisted that the bench simply echoes the wishes of mainstream Canadian society.

During that interview, Judge Lamer criticized Parliament for failing to step up to the plate and pass laws on topics as abortion and assisted suicide. The chief justice summarized his thoughts by saying: "Thank God we're here . . . . People say we're activist, but we're doing our job."

But to many court observers across the political spectrum, the notion that the Supreme Court is simply "doing its job" is simply not credible. To conservative critics, Judge Lamer's comments sugarcoat the court's growing penchant to overturn legislation enacted by a democratically constituted Parliament. During the 22 years under the 1960 Bill of Rights, just one statute was declared invalid by the Supreme Court. In the first decade under the 1982 Charter of Rights and Freedoms, the Supreme Court voided 41 statutes. The 1985 Singh ruling is just one example. It struck down procedures for immigration hearings on refugee status and required the government to provide mandatory oral hearings for all claimants. The upshot: amnesty for 15,000 refugee claimants, and 280 new Immigration and Refugee Board bureaucrats.

The Supreme Court's activism since the Charter appeared on the scene in 1982 has energized a growing army of critics. They maintain that the court regularly stomps on the will of Parliament.

But to many others, across the political spectrum, the trouble is not so much activism, but plain arrogance. For these court-watchers, Judge Lamer's recent remarks betray a disdain for Canada's status as a democracy in which the citizens, not nine benevolent monarchs in red robes, rule the roost.

William Gairdner, a well-known conservative author who is working on a book called The Trouble with Democracy, says the court must come to terms with the reality that it is increasingly alienated from the views of everyday Canadians. "They mirror the values of one very small but incredibly powerful segment of Canadian society -- the liberal educated elite."

Mr. Gairdner calls the new post-Charter outlook of the Supreme Court "hyper-democracy." By this he means that basic legal rights are no longer defined by society at large but by a small cadre of liberal elites. In fashioning new "rights" in the name of a "hypothetical individual" who exists only in liberal fantasy-land, the courts are positioning themselves against true democracy.

Witness the anti-media stance of last year's comments by Judge Lamer: "Let's face it, the judicial system is very, very fragile. Watch it, criticize it, control it properly, yes, but judge-bashing must stop. The court process is like a psychodrama, and the actors, or judges, have come to command a certain degree of respect, or it's chaos and the whole system falls apart." Or his musings in 1992, when the chief justice told the graduating class at the University of Toronto's law school that the basic problem with democracy is that it does not guarantee "human flourishing." He prefers a "benevolent absolute monarch."

It might, therefore, come as little surprise that many key aspects of the workings of the Supreme Court, not just the chief justice's personal convictions, could be perceived as anti-democratic. There is no public selection process for incoming judges, who are unelected and thus unaccountable, a fact that has drawn increasing criticism. Less well-known is the secrecy that surrounds many routine Supreme Court procedures, from the writing of the decisions themselves to the way in which the court deals with the media.

Central to the court's shroud of secrecy are the court clerks. Each of the nine justices of the Supreme Court hire three law clerks to assist them with legal research. The average age of a clerk is 27. They are mostly women. Fresh out of law school and generally without any actual legal experience outside the classroom, clerks often find themselves drafting memos which form the substantive basis of the judge's final decision.

Ian Hunter, an emeritus professor of law at the University of Western Ontario and a long-time critic of activism on the bench, finds the "unbelievable" influence of the clerks to be jarring.

"The justices look at the Dean's List from which to hire new clerks, but the Dean's List is awarded predominantly to people with a particular ideological view," says Prof. Hunter.

Michael Mandel, a left-of-centre professor at Osgoode Hall Law School in Toronto, refers jokingly to a former socialist-minded student who clerked for the late Justice Brian Dickson. During that year, recalls Prof. Mandel, there was a "certain leftist tinge to Dickson's judgments."

Lorne Sossin, a former law clerk at the Supreme Court of Canada who is now a professor at Osgoode Hall Law School, likens the court to "any other policy-making institution." "Just as the prime minister may have aides to assist him in drafting legislation, clerks play an analogous role. What's more, they represent the outlook of a new generation."

Robert Martin, a law professor at the University of Western Ontario, is less sanguine about the role of clerks. "The clerks manage to capture the judges. They come along with the latest fancy ideas fresh out of law school. The judges then think, 'I may be old, but I'm still hip,' so they latch on to illiberal ideas."

This year, says Prof. Martin, a new clerk from his law school with strong feminist credentials will be working for Madame Justice Claire L'Heureux-Dube. He says the clerk in question, whose work experience includes running a battered women's shelter, will "shortly be writing decisions for all of Canada."

Prof. Martin says he has evidence that judges look for "ideological purity in their clerks." Several former students, upon returning from interviews at the Supreme Court, told him that a certain justice had asked them during their interview: "Do you know Rob Martin?" "They would say that I was a swine, and [then would] weed out any students who would not speak ill of me."

One former law clerk at the Supreme Court says that clerks gain special insight into the politics of the court which remain concealed from the outside world. "There's considerable politics on the court," he said, "with a handful of justices jockeying to be the next chief justice, and nearly all of them constantly jockeying to be in the majority on any given decision."

He notes that "political jockeying of this sorts lends itself to a type of internal inconsistency of decisions."

Yet another group of politically savvy players at the Supreme Court are the left-leaning interest groups that intervene in cases before the court, says Ian Brodie, a professor of political science at the University of Western Ontario. These interest groups have great clout, especially with clerks, argues Prof. Brodie: "The clerks have just finished taking law school classes taught by the very same activists who are intervening in the cases."

Prof. Brodie's observations are backed up by the research of Gregory Hein, a lecturer at McMaster University. From 1988 to 1998, Mr. Hein found that social activists had launched 104 cases challenging elected officials to extend rights, compared to 92 such cases launched by corporate interests to push back legal constraints on their commercial activities. The propensity of activist groups to litigate under the Charter was higher still. One in eight activist groups launched a suit, compared to one out of every 399 corporate interests.

Activism has also been manifest in the types of decisions the top court chooses to rule upon. The criteria by which leave to appeal to the Supreme Court is granted are entirely subjective. It is not clear why M. v. H., for example, the case that caused such a furor for extending spousal support benefits to gay couples, was even considered by the court. It was what lawyers call "moot," since M. and H., the contesting parties, had settled their dispute long before the Supreme Court heard the case.

Conservatives should respond to the predominant left-wing ideology on the court, says Prof. Brodie, by pushing for the appointment of conservatively-minded judges. "If the courts say, this is how the game is going to be played, let's make sure we play as best we can. Sure, we're 20 years behind the feminists and the gay movement. We actually could learn a lot from them."

Jacob Ziegel, professor emeritus at the University of Toronto law school, subscribes to a less extreme approach. He recently authored a study for a Montreal-based think-tank, the Institute for Research in Public Policy, in which he recommends that Canada adopt a U.S-style public nomination and confirmation procedure in order to instill greater transparency and accountability in the selection of judges. This followed on the heels of a study that showed just 8% of Canadians agree with the current procedure of allowing the prime minister, on the advice of the justice minister, to single-handedly appoint judges to the Supreme Court.

Yet Prof. Ziegel argues that greater transparency is not enough. "It's the Charter that's the genesis of all these problems." "The founding fathers," says Prof. Ziegel, "clearly envisioned the federal government to have the senior powers . . . . What we're seeing now is that the Supreme Court is continually being driven by the dynamism of the Charter. The decision-making process often becomes a form of scholastics that is not of this world, but of Utopia."

One curious corner of the legal Utopia that inhabits the Supreme Court is the court's press office. James O'Reilly, the "executive legal officer" of the Supreme Court of Canada, describes himself as an "aide to the chief justice." He operates out of the chief justice's Office and "does media relations for the court." But it's a rather unique type of media relations. He says it's within his mandate to "assist journalists in figuring out what our judgments mean. . . . I explain the background of the judgments to journalists, and explain to them the gist of the decision. . . .This court does the most for the media than any other court I know of," boasts Mr. O'Reilly.

He acknowledges firing off occasional letters to the editors of newspapers across Canada, rebuking them when they get the interpretation of a judgment wrong. Andrew Irvine, president of the B.C. Civil Liberties Association, and a professor of political science at UBC, says there is nothing below board about what the court's media office is doing, "but it should know there is no such thing as a privileged interpretation."

The court fights the press. The court fights Parliament. Only rarely is the court reprimanded. In an interview for CPAC in December, 1996, Judge Lamer said he was "disappointed" when the Senate amended Bill C-42, which would have allowed all judges, not just Judge Arbour, to engage in political activities outside of Canada at taxpayers' expense. This echoes statements made in August, 1997, to The Lawyers Weekly, in which he stated, "Once we are outside of Canada, we are not judges anymore."

Just where does the legal end and the political begin? Canadians must decide. One view on this comes from no less an authority than Mr. Justice Francis Muldoon of the Federal Court of Canada, who remarked in a little known immigration decision last year called Re Ten: "Canada proclaims itself to be a democratic country, but democracy itself is imperilled when judges arrogate the role of legislators."




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