Jurassic Park is a 1990 science fiction action novel written by the late Michael Crichton. It is a cautionary tale about genetic engineering, presenting the collapse of a zoological park. It showcases genetically recreated dinosaurs to illustrate the mathematical concept of chaos theory and its real world implications. The book critiques the dystopian realities of modern science. It is essentially another version of Mary Shelley’s novel “Frankenstein; or The Modern Prometheus”, where humanity creates something without truly knowing anything about it, alluding to Victor Frankenstein’s not knowing what to call his flawed imitation of God’s creation. The immorality of these actions leads to human destruction. Crichton’s novel highlights the hypocrisy and superiority complex of the scientific community that inspired them to re-create prehistoric monsters and treat them as commodities, which can only lead to eventual catastrophe. The similar fears of atomic power from the Cold War are adapted by Crichton onto the anxieties evoked by genetic manipulation.
By analogy, what if a group of legal intellectuals with a similar superiority complex took it upon themselves to begin to redesign the Canadian Constitution, the division of powers, our cherished institutions, our human rights, our civil rights, to fit the progressive, leftist image of what a post-nation state should look like under an all powerful Federal Government? What if they fashioned the Canadian Charter of Rights and Freedoms into a legal Frankenstein monster or a jurisprudentially modified T-Rex? In short, what happens when Judges assume the power to make law and play God in their own private Juristic Park? That is the cautionary tale of judicial activism, and we are seeing it play out in real time in the era of an increasingly politicized Canadian judiciary.
Critics of judicial activism have long railed against assertion of law making power as being outside the proper role of the judiciary. They say that it disrespects the authority of legislatures and is fundamentally undemocratic. Perhaps most importantly, it witnesses judges uninhibited by historical safeguards meant to control and prevent judicial radicalism.
In an address made some years ago, our longest-serving then Chief Justice Beverley McLachlan expressed confidence that “between the extremes of excessive judicial activism and judicial timidity we will find solutions that will serve Canadians well.” It is hoped that the following critique will assist in this very endeavour, revealing errors in judicial approach that are inconsistent with accepted, time honoured standards. Recognizing the problem is the first step to its amelioration and may temper zealous activism while still allowing the Charter to flourish as a strong and meaningful expression of rights for all Canadians.
Judge-made law and legislative reform existed prior to 1982. The often rancorous modern debate over judicial activism did not arise exclusively because of the Charter. It is certainly true that the broad, unprecedented Constitutional powers vested in judges by the Charter have raised the stakes of this debate. However, the debate itself has roots in a deeper controversy concerning the attitude and role of the judiciary in Canadian law and society. We need not dig too deeply to discover historical examples of problematic judge-made laws requiring legislative correction. In the late 19th century, for instance, judge made laws collided with efforts of the emerging trade unions to improve the wages and industrial conditions of workers. Legislative change was necessary to balance the interests of workers against the unbridled capitalist actions of employers.
One such example is the judicially fabricated “common employment” rule. In the mid-1800s, amid the Industrial Revolution and long before the inception of workers’ compensation statutes, the Courts arbitrarily decided that an employee injured at work due to the negligence of a co-worker was barred from suing the employer for resulting damages. Since it would almost never be worthwhile to seek such compensation from a co-worker, this ruling was a significant hurdle to injured workers needing redress for job-site accidents. Yet the mines and factories of Victorian England, where the rule was developed, were quite hazardous. In the 1850’s, for example, during a 3 year period, over 3,000 fatal accidents occurred in the mines there, all of which went uncompensated. The mines in 19th century Pictou County, Springhill, and Cape Breton, Nova Scotia, were no less dangerous. In the Pictou coal fields alone, hundreds lost their lives. In the limited circumstances where injured employees could sue, the courts refused to award compensation to injured workers if they were even partially responsible for their injuries. These rules manifested a judicial reluctance to expand liability for industrial accidents, and a corresponding indifference to the plight of injured workers and their families. By the turn of the century, legislatures had to intervene to establish workers’ compensation schemes providing financial support in cases of workplace injury, regardless of judge made rules governing liability and recovery.
In the 1930’s, Parliament attempted to respond to the Great Depression via legislation governing minimum wages, hours of work, and employment insurance. Courts responded by striking down federal legislation imposing these national standards. The Courts were criticized for disabling Parliamentary measures in a time of national emergency. In the case of unemployment insurance, a constitutional amendment was required in 1940 to establish a national program. These examples can be regarded on the one hand as illustrative of unyielding judicial dogma at odds with societal demands requiring urgent legislative action; conversely, they can also be regarded as proper judicial adherence to legal precedent, despite causing hardship or unfairness—recognizing that the authority to modify or modernize the law rested solely with elected legislatures. Whether judge-made law is best described as regressively unyielding or else dictated by Stare Decisis, the fact remains that it is the legislatures and not the Courts which have borne the historic burden of legal reform. Indeed, the statute books are rife with examples of legislative remediation of bad judge-made law.
In terms of human rights, judicial experience with John Diefenbaker’s 1960 Canadian Bill of Rights is instructive. The Bill of Rights was an ordinary federal statute protecting certain human rights and fundamental freedoms. The Bill of Rights was subject to amendment or repeal by Parliament at any time and applied only to areas of s.91 jurisdiction. It did not have the Constitutional clout that the Charter would later wield. Only in a single case was a federal statute ever over-ruled in reference to the Bill of Rights. The Court restrained itself, reluctant to deny operative effect to a substantive measure duly enacted by a Parliament exercising its power according to the tenets of responsible government. In applying the Bill of Rights, the Courts were most careful to respect the will of the nation’s elected representatives as expressed in the impugned legislation.
The U.S. experience, which has over two centuries of tradition with a constitutionally entrenched Bill of Rights, illustrates the basic problem. Constitutional principles are quite at the mercy of judicial proclivity. A striking example of this is a 1857 SCOTUS decision concerning the 5th Amendment, which prohibits deprivations of “life, liberty, or property”to prevent emancipation of slaves. While it is difficult to reconcile a constitutional guarantee of “liberty” with slavery, SCOTUS held that slave owners were constitutionally guaranteed their property. The majority of SCOTUS justices at the time happened to hail from slave owing states. Such partisanship has not dissipated through the mere passage of time. The late Peter Hogg, a renowned Canadian Constitutional scholar, once described the SCOTUS of the 1950’s under Chief Justice Warren thusly: “The Warren decisions vindicated values then current among American liberals whereas those of the previous era vindicated values then current among American conservatives. Judicial activism can take any political direction depending in large measure on the political predilections of the judges.”
Hogg further says that the interpretation of the Bill of Rights varies with the changes in attitudes of the judges who must apply it. In a democracy, the attitudes of our elected representatives have a stronger claim to legitimacy than the political musings of judges and until the Charter, the will of those legislators was predominant. It is therefore unsurprising that a debate has erupted surrounding the proper role of judges in the post-Charter Canadian context.
Some key questions need to be asked here: firstly, does the Charter actually empower judges to effectively become creators of law in Canada? And secondly, even if it is Constitutional for them to do so, should judges be making law in a nation founded upon the principles of representative democracy and of fundamental justice? Early Charter cases signaled a watershed compared to the judicial approach of Courts to the Canadian Bill of Rights. Whereas the Courts had been cautious and restrained about the Bill of Rights and respectful of the will of Parliament, the Court was now resolved to give the Charter a “large and liberal”, “broad and generous” interpretation. A series of controversial decisions by the newly emboldened SCC ensued. These have led to rising criticism of the Court’s bold activism and an equally vocal defense. Such cases cover a vast cross-section of legal and social issues. For example, a series of decisions have read in “sexual orientation” as a prohibited ground of discrimination, leading inexorably to same sex marriage and legal protection of the highly divisive radical LGBTQ+ political agenda as a sort of post-modern human right. Another struck down Quebec’s prohibition on private health-care insurance, opening the door to two tiered health care. Another one struck down Canada’s Sabbath day business closures, effectively terminating the common day of rest. Yet another decision allowed the court to order the executive branch of government to appear before courts to report on its conduct, dramatically altering the relationship between the executive branch and the judiciary. Finally, there is a decision extending the constitutional right to freedom of association to include collective bargaining.
The changes wrought by these decisions and others must not be understated. Through its application by the SCC as well as lower courts and tribunals, the Charter has brought sweeping changes to Canadian law, government, and society; but it is still not obvious that these decision necessarily flow from the Charter. Does the Charter actually mandate judicial dominance in matters so laden with moral and political choice? Or is the judiciary experimenting with issues that are the province of our elected representatives, making dubious social and economic policy decisions cloaked as legal rights? If so, then how can these decisions be corrected when they have the veneer of constitutional permanency? Most crucially—is democracy being diminished or even obviated by an over-reaching judiciary?
Certain critics have boldly stated that the Courts have weaponized the Charter in a dazzling exercise of self-empowerment and thereby succumbed to the seduction of power. They rightly contend that the Courts are unelected, undemocratic, elitist, and often partisan. The Court and the “Court Party”, their coterie of dependents, including lawyers, law professors and special interest group litigants, have employed the rhetoric of law and legal rights to arrogate authority over important fields of public policy from elected legislators to politically appointed judges. Decisions which ought to be the subject of negotiation, debate, and compromise amongst our elected representatives have been pre-empted by authoritarian judicial rule. This is the creation of their ‘juristic park’, in which judges design and dictate public policy.
All of this is deeply and fundamentally undemocratic. It has even been suggested that the Court has contradicted the “original legislative understanding” of the Charter by reading into existence rights that were adverted to but specifically excluded from the Charter during its 1982 conception. It has also been argued that the Court has repudiated its own precedents in proclaiming Charter rights, an approach incongruous with the Rule of Law.
In response, there have been vociferous leftist defenses of the Court. Against the assertion that judicial activism is undemocratic, it is argued that the Court plays a significant role in the protection of minority rights that is a vital component of a true democracy; and that our Parliamentary system is essentially undemocratic in any case because policy making in Canada is placed into the hands of the executive. Against the charge that judges are too activist, it is argued that they are obliged to apply the Constitution and are restrained by nature as “an unlikely habitat for revolutionaries.” It is said that Charter decisions constitute a dialogue with the legislature by which laws are more carefully crafted to respect Constitutionally enshrined values. In reply to the contention that judges have illegitimately expanded their role from adjudicators of disputes to preside over policy contests of interested intervenors, it is said that the complexity of modern legal issues requires the Court to hear a full range of diverse perspectives. It is argued that the Courts have done a fine job of interpreting the Charter to fairly balance competing interests, while also promoting the core values expressed in the Charter itself.
The most persuasive of these defenses of judicial activism is that our Courts are now vested with the Constitutional duty to apply the Charter in a meaningful way. That aside, there remains basic merit in positing that in a parliamentary system, substantial and even deferential respect must be shown to the democratic will of elected legislators. This is particularly so given the reality that Courts lack a strong history of tempering justice to suit contemporary needs, and since Charter law is so heavily dependent upon the political attitudes of the judges applying and indeed creating it. Ultimately, it is the attitude of judges charged with applying the Charter which dominates the development of Charter law. There is no better representation of this activist judicial attitude than the following comment from Rosalie Abella, made in a circa 2000 speech, four years prior to her elevation to our nation’s top court:
“With the arrival of the 1990’s, a few abrupt voices were heard to challenge the Supreme Court, voices in large part belonging to those whose psychological security or territorial hegemony were at risk of the Charter’s reach. As the decade advanced, so did the courage and insistence of these New Inhibitors, most of whom appeared to congregate at one end of the ideological spectrum. While their articulated target was the Supreme Court of Canada, their real target was the way the Charter was transforming their traditional expectations and entitlements. They made their arguments skillfully. In essence they turned the good news of constitutional rights, the mark of a secure and mature democracy, into the bad news of judicial autocracy, the mark of a debilitated and devalued legislature. They called minorities seeking the right to be free from discrimination ‘special interest groups’ seeking to jump the queue. They called efforts to reverse discrimination “reverse discrimination.”
Justice Abella sat on the SCC for 17 years before retiring in 2021. The above remarks are both disturbing and instructive. They reveal an intolerance of genuine criticism, launching ad hominem attacks at the motives of such critics. Their motives cannot be simply dismissed as sinister. They are more often founded in a sincere concern for democracy, not self-interested entitlements or personal insecurities. Neither is it accurate to characterize all those who disagree with judicial activism as ‘right wing radicals’. Her comments also inadvertently identify the stark ideological chasm between judicial activists and their critics. Such critics, according to leftist activists, are the “New Inhibitors” opposed to legitimate minority demands for equality. Conversely, the ostensible mandate for judicial activists is to reverse discrimination, and achievement of that social goal must be uninhibited. The reality is that the centuries old jurisprudential common law tradition of caution, restraint, and deference to democratic Constitutional principles, is no more. Judges—having assumed the Promethean power to make law and to fashion social policy to effect liberal, leftist political agendas—are free to play in the juristic park for which the Charter provided the blue-print.
The resulting body of Charter law has ironically and tragically produced a nation ruled by unelected, elitist, activist judges; a nation that, despite the rights guaranteed in the Charter some four decades ago, has never been less free, or more authoritarian. We need only read the comments of our current SCC Chief Justice to appreciate the extent to which our courts have become politically activist in 21st century Canada. Speaking about the Freedom Convoy, which engages many cases presently before the civil and criminal courts of this country, Chief Justice Wagner passed a public political sentence upon the truckers who went to Ottawa in January of 2022 to exercise their Charter protected rights to gather in the nation’s capital, associate, and to peacefully protest the historic suppression of their civil liberties by the Trudeau government:
In his interview with Le Devoir, Wagner characterized the protest on Wellington Street, where Parliament and the Supreme Court are located, “as the beginning of anarchy where some people have decided to take other citizens hostage.” The article reports Wagner as having declared that “forced blows against the state, justice and democratic institutions like the one delivered by protesters … should be denounced with force by all figures of power in the country.”
In response, a group of concerned lawyers filed a complaint about these comments with the Judicial Council of Canada. Their complaint about Mr. Justice Wagner was summarily dismissed.
Leighton Grey QC is a lawyer practicing in Calgary and a Senior Fellow at the Frontier Centre for Public Policy.
Racially Based Justice is Built on Flawed Reasoning by retired judge Brian Giesbrecht.
Watch Leighton Grey’s podcast, Grey Matter here.