Meet Sheilah Martin, the newest judicial activist

National Affairs Rory Leishman

National Affairs Rory Leishman

Madam Justice Sheilah Martin, Prime Minister Justin Trudeau’s latest pick for the Supreme Court of Canada, will probably be just as bad as – if not worse than – former Chief Justice Beverley McLachlin and all the other judicial activists on the Court who have treated the 1982 Canadian Charter of Rights and Freedoms as a mandate for unelected judges to dictate public policies to Canada’s elected legislators.

Not so long ago, such high-handed judicial abuse would have been unimaginable. With rare exceptions, the overwhelming majority of Canadian judges felt duty bound in every case to set their personal opinions on equity and public policy aside for the purpose of upholding the laws and the Constitution as enacted and originally understood.

Like all judicial activists, Martin argues that this traditional, restrained approach to judicial interpretation is, at best, outdated. On her application form for appointment to the Supreme Court of Canada, she noted: “Parliament and provincial legislatures expressly gave courts the power to review state action for compliance with the Charter.”

True enough; but the real issue is the interpretation, not the authority of the Charter. Martin did not, and could not, cite any evidence that Parliament and the provincial Legislature intended to mandate judges to throw off all restraint and to treat the rights affirmed in general terms in the Charter as so many blank slates on which they, the judges, can dictate whatever new laws and public policies they might prefer.

Regardless, Martin says: “The courts are also the trustees of the ‘living tree’ doctrine and have the obligation to ensure that rights develop along with changing social realities.”

Who propounded this doctrine? Was it Canada’s elected legislators?

No, it was Viscount Sankey, a British lawyer and former Labour politician. In reasons for judgment on behalf of the Judicial Committee of the Privy Council in the notorious 1929 Persons Case, which reversed an unanimous ruling of the Supreme Court of Canada, he decreed: “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.”

Note that qualification: “within its natural limits.” A living birch cannot naturally transmogrify into a poison oak.

During debate on enactment of the Charter, the Conservatives moved an amendment to assure that the Supreme Court of Canada could not invoke the general guarantee of “life, liberty and security of the person” in section 7 of the Charter as a pretence for usurping the authority of Parliament to legislate on abortion. Former Liberal prime minister Pierre Trudeau, no mean constitutional scholar, insisted that the amendment was unnecessary. He assured: “The Charter is absolutely neutral on this matter.”

Jean Chretien, then Liberal justice minister, likewise stated: “The question of abortion is dealt with in the Criminal Code and in no way can the Charter be used to interfere with the actions of this Parliament in relation to the Criminal Code and abortion.”

Did the Supreme Court of Canada pay heed to this clear evidence of the intention of Parliament in enacting the Charter? Not at all. In a five-to-two ruling in Morgentaler, 1988, Canada’s top court arbitrarily struck down Canada’s abortion law.

Martin was delighted. Writing in the Canadian Journal of Women and the Law, she lauded the outcome in Morgentaler and looked forward to how the ruling “will also limit and shape the terms of any ensuing political debate” on abortion.

In another revealing article, “Balancing Individual Rights to Equality and Social Goals,” (Canadian Bar Review, 2001), Martin took the theory of judicial activism to new lengths by chiding Canada’s top court for allegedly applying excessive deference to the judgment of elected legislators in Charter cases relating to equality rights.

In this same vein, Martin opined in her application for appointment to the Supreme Court of Canada that “If the Court truly believes the law would lead to an unjust result, the principle of law in question may very well need to be re-considered.”

Perhaps so, but the question is: Who should change the principle of law?

Not so long ago, that issue was settled in Canada: there was general agreement that elected representatives of the people in the legislative branch of government had exclusive legislative authority to amend the laws and the Constitution of Canada.

Today, of course, that is no longer the case. In the Charter era, the Supreme Court of Canada reigns supreme. Time and again over the past few decades, arrogant judicial activists on this tribunal have hamstrung Parliament and the provincial legislatures by dictating the essential features of new laws relating to everything from abortion and euthanasia to the definition of marriage, land-claims entitlements and national security.

And that, Madam Justice Martin has made clear, is just fine with her.

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