Globe and Mail

Top court hijacked, critics warn

KIRK MAKIN
Justice Reporter
The Globe and Mail
Monday, April 3, 2000

Supreme Court of Canada rulings are increasingly influenced by invisible law clerks who craft legal reasoning and aid in writing judgments, two leading critics of the court charge in a book scheduled for publication today.

"The rapid growth in the number and functions of the clerks has effected a devolution of power from the top -- judges -- to the middle of the bureaucratic pyramid," political scientists F. L. (Ted) Morton and Rainer Knopff say.

The thesis of their book, The Charter Revolution and the Court Party, is that powerful outside interests have hijacked the court process since the Charter of Rights came into being in 1982.

The two University of Calgary professors identify a coalition of determined interest groups and "social engineers." Included in its membership are frequent litigators for gay rights, civil liberties, feminists, aboriginals and champions of linguistic rights.

"The Supreme Court is no longer a court, but an overtly political censor -- an oracle ready to second-guess disputable political judgments whenever it sees the need," the authors say.

They say the number of law school graduates clerking for Supreme Court judges has tripled since the Charter of Rights was created -- from one per judge to three -- and that their power now equals that of law clerks at the U.S. Supreme Court.

"The clerks play a central role in all major court functions," the book says. "Lawyers can no longer assume that the judges have actually read their legal factums, as opposed to selective summaries prepared by the clerks."

It says that the law clerks are drawn from the cream of the country's law schools and that many were influenced by professors who belong to interest groups that are active before the court.

"The clerk's drafting and filtering functions are coloured by close ties to their law schools," the book says. "They serve as an intellectual conveyor belt from the law schools to the inner sanctum of the Supreme Court. . . ."

Mr. Justice Frank Iacobucci of the Supreme Court acknowledged in an interview that clerks play an indispensable role in providing suggestions and checking through rulings for errors, but he said the book overstates their influence.

"To say as an institution that the clerks are basically deciding the cases and writing them up -- I just can't subscribe to that," he said.

Prof. Morton and Prof. Knopff were among the first academics to accuse the Supreme Court of becoming intoxicated with the thrill of usurping the right of legislators to make law.

They argue that when politicians get used to courts dealing with difficult issues, a sort of "legislative paralysis" sets in.

"To transfer the resolution of reasonable disagreements from legislatures to courts inflates rhetoric to unwarranted levels and replaces negotiated, majoritarian compromise policies with the intensely held policy preferences of minorities," they say.

Their book gives short shrift to the judges' insistence that they do no more than they are obliged to do -- measure governmental action to make sure it adheres to the constitutional rights of individuals.

The authors point to frequent internal disagreements among appellate judges, saying it puts the lie to the notion that rights are concretely defined and predictable.

"When judges disagree, each one indulges in the legal fiction that his understanding of the Charter is correct and that his colleagues are mistaken," Prof. Morton and Prof. Knopff maintain. "In fact, there are usually several plausible interpretations and no obviously correct answer."

Their book says that one of the clearest examples of judicial sleight-of-hand is known as "original intent" -- goals and principles of parliamentarians that were put on the record when they created specific legislation.

"If the judges can find evidence of original intent that supports their policy predilections, they will embrace it," the authors say. "If original intent would obstruct the desired policy, they ignore or reject it. Far from being a constraint on judicial discretion, original intent has itself become a matter of judicial discretion."

The book bemoans the fact that individual litigants are vanishing from the Supreme Court to be replaced by social-activist "elites" who reject political action in favour of trying their luck at persuading a handful of judges, it says.

The authors identify numerous links between individuals and organizations who appear frequently before the court. Prominent among these is the successful intervenor of all -- the feminist Women's Legal Education and Action Fund.

"In the first three years of Supreme Court Charter decisions, there were only 17 non-government intervenors," the book says. "By 1990, more than 100 public interest group intervenors participated in over half of all the Supreme Court's Charter cases. By the end of 1993, the number had risen to 229."

In contrast, its says that corporate intervenors reach the court only sporadically and are rarely united in a common cause.

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