© 2000  Karen Selick
Methinks the Lady Doth Protest Too Much
An edited version of this article first appeared in the February, 2000 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


Methinks the Lady Doth Protest Too Much

This is a sequel to last month’s column in which I responded to Madam Justice L’Heureux-Dubé’s August speech to the Canadian Bar Association.

Like the boy who cried wolf, Canadian judges have complained so much lately about threats to their judicial independence that it’s getting hard to take them seriously.  Judges in Quebec actually protested a few years ago that the loss of free parking privileges would compromise their judicial independence.

In her speech, Justice L’Heureux-Dubé cited a 1986 judgement of Chief Justice Dickson which encapsulated the principle of judicial independence this way: "…no outsider—be it government, pressure group, individual or even another judge—should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision [emphasis added]." 

While this sounds very virtuous in speeches, what has the court actually been doing in practice?  In recent years, it has flung open its doors to outsiders seeking to influence its decisions.  A search of the Supreme Court databases reveals an astonishing change. 

In the 65 years from 1920 to 1984, the court allowed intervenors to participate in only 118 cases—about two a year.  However since 1985, they’ve listened to intervenors in 434 cases—an average of 29 times a year.  In fact, more than a quarter of all reported Supreme Court decisions since 1985 involved at least one intervenor.

Often, the intervenors were federal or provincial governments.  According to Justice Dickson’s principles, that’s bad enough.  But frequently, the intervenors were organizations that can’t realistically be called anything other than pressure groups.  The Women’s Legal Education and Action Fund (LEAF), for example, turned up in 32 separate SCC decisions since 1985. 

In allowing one of LEAF’s applications to intervene, the late Justice John Sopinka opined that the group would "bring a special perspective to the appeal."  Yeah, no kidding. 

Does Madam Justice L’Heureux-Dubé really expect us to believe that listening to a bunch of radical feminists beat their drum over and over again has no impact on the decisions reached by the court, but a couple of critical newspaper articles complaining that the court is encroaching upon the legislature could be enough to chill the court into abandoning its judicial independence?  Methinks the lady doth protest too much.

In fact, the reasons handed down by the court in some recent cases are so heavily laced with pressure-group rhetoric that some of us are beginning to believe the rumour that they’re not written by the judges at all, but rather by the young clerks they hire right out of those ideological indoctrination centres called law schools. 

Justice L’Heureux-Dubé also used her speech as an opportunity to deny charges of judicial activism.  Here, at last, she made a point I can agree with. 

Active versus passive is a very poor way to assess the merits of a court.  Unfortunately, many otherwise intelligent critics of the Supreme Court use this imprecise language as a shorthand way of expressing their disapproval whenever the court strikes down or modifies legislation as unconstitutional. 

There are times when those who value freedom and justice should want the court to be activist, to strike down legislation—namely, when the constitution leans more to the side of freedom and justice than some silly law passed by the legislature.  We should never forget that the tyranny of the majority, embodied in laws passed by democratically elected governments, can be just as pernicious as the rule of a dictator or the judgements of a corrupt or cowering court. 

Unfortunately, Canada is thrice-damned.  Not only do we have elected governments with no consistent commitment to freedom or justice, we also have a constitution which is equally ambivalent, and a judiciary who seem just as confused about the whole mess as the politicians.

Nevertheless, while I can accept the occasional excuse, "The constitution made me do it!", there have been a number of recent cases where the court has suddenly stood the law on its  head--without warning, without precedent, without constitutional justification, indeed without any apparent justification.

Examples are Delgamuuk (the native land claims case where the court trashed the rules against hearsay evidence), R. v. Feeney (the murder case where they adopted absurd standards of unreasonable search and seizure) and R. v. Marshall (the native fishing rights case where their interpretation of plain words in a treaty can only be described as grotesque). 

Can the court really be so naïve as to not anticipate the mischief that bolts from the blue like this will wreak on the country? 

Justice L’Heureux-Dubé asked lawyers to speak out "to help explain or defend our decisions."  Like Rodney Dangerfield, apparently, the court just gets no respect these days. 

Sorry, but I can’t explain or defend the court’s decisions to others when I find them largely incomprehensible and indefensible myself.  If the court finds itself misunderstood by the public, or unable in 50 or more pages of reasoning to persuade people that its decisions are justified, dare I suggest that the problem lies not with the public? 

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June 22, 2000