Supreme Court 'absolutely corrupt': prof

Robert Martin is a professor of law at the University of Western Ontario, a columnist for the Lawyers Weekly, and an outspoken critic of the post-modernist orthodoxy that holds sway in Canada's legal and academic communities. All students of Canadian politics should ponder his latest and best book - The Most Dangerous Branch: How the Supreme Court of Canada Has Undermined Our Law and Our Democracy.

In the Federalist Papers, Alexander Hamilton described the judiciary as "the least dangerous branch" of government under the proposed United States Constitution. Until recently, the same could have been said about the judicial branch of government under the Constitution of Canada. What has gone wrong? Why does Martin denounce the judiciary as, "the most dangerous branch" of the Canadian government?

At the root of the problem is the wanton disposition of Canadian judges to flout the separation of judicial from legislative and executive powers under the Constitution.

Baron de Montesquieu foresaw the dire consequences of such judicial arrogance. In his 1748 classic, L'Esprit des Lois, he warned: "There is no liberty, if the power of judging be not separated from the legislative and executive powers."

"The Supreme Court of Canada now exercises all three sorts of power," observes Martin, "and on the basis of Montesquieu's analysis, must be regarded as despotic."

According to the separation of powers, judges are supposed to uphold the law as defined by statutes and judicial precedents. Instead, members of the Supreme Court of Canada have become a law unto themselves. They routinely second guess the wisdom of laws enacted by elected representatives of the people. They unilaterally change even the most basic laws, such as the venerable legal rule that defines marriage as the voluntary union for life of one man and one woman.

"Every police constable is expected to act within the law and so are judges of the Supreme Court of Canada," Martin observes. "In practice, however, the judges behave as if they possess unlimited power and are not subject to any legal constraints. They amend the Constitution at will, rewriting it or inventing new principles, as if the Constitution were their private possession or plaything."

In the 1996 Egan case, the Supreme Court of Canada amended Section 15 of the Charter to include equality rights for homosexuals. In 1997, this same court amended Section 100 of the original 1867 Constitution of Canada Act to include a requirement that Parliament must establish an independent and impartial compensation commission to determine salaries and pension benefits for judges.

The arbitrary decision of the Supreme Court of Canada in the 1988 Morgentaler case reduced Canada to the ignominious status of the only ostensibly democratic country in the world with no legal protection for the life of babies in the womb. "This means that so-called 'partial-birth' abortions happen in Canada," decries Martin. He laments: "Canadian hospitals have seen the performance of a grotesque form of abortion in which a full-term fetus is delivered alive and simply left to die."

How has the Supreme Court of Canada gotten away with usurping legislative power? Legal academics bear much of the blame. Martin states: "Canadian university law professors have largely abandoned any pretence at being scholars and have turned themselves into propagandists - propagandists for the ruling clique and the orthodoxy."

Senator Anne Cools has written a brilliant introduction to Martin's book. Although she is self-taught in the law, Martin justly esteems her as one of the most learned and perceptive experts on Canadian constitutional law.

Like Martin, Cools maintains: "The judiciary is profoundly undermining representative parliamentary democracy. In effect, the judiciary is turning Canada into an oligarchy, even into a kritarchy (Greek for rule by judges)."

What can be done to curb the judicial subversion of democracy in Canada? Absolutely nothing, Martin suggests, so long as most Canadians remain complacent. "Absolute power, in Lord Acton's aphorism, corrupts absolutely and the Supreme Court is now absolutely corrupt," he concludes. "This distressing situation will exist only so long as Canadians continue to tolerate it, and Canadians are probably the most tolerant people on earth. There is no virtue in tolerating the intolerable."

Cools concurs. She, too, denounces "the wanton disregard by the judiciary of its proper constitutional role in representative parliamentary democracy." She urges Canadians to speak out against, "the excesses of judicial activism." She admonishes: "For the sake of justice, and for the sake of representative institutions, Canadians have no recourse but to resist these judicial incursions into politics and public policy formation."