In an address to The Canadian Club of Toronto last week, Chief Justice Beverley McLachlin decried: "the standard stock of

some editorial pages that judges have ventured outside their proper territory and waded deep into political waters.She maintained that, "Contrary to popular myth judges do not pluck meanings from the air according to their political stripe."

McLachlin is mistaken. There is no such, "popular myth." Few critics have ever suggested that she and her Supreme Court of Canada colleagues are governed by a misplaced loyalty to the Liberals, the New Democrats or any other political party.

What alarms and dismays everyone who still understands the meaning of freedom under law is that judges like her have become a law unto themselves: Under the pretence of upholding the Canadian Charter of Rights and Freedoms, they have taken to imposing their personal ideological convictions on the country, by arbitrarily striking down some laws and amending others without regard either for judicial precedents or the express preferences of elected representatives in Parliament and the provincial legislatures.

McLachlin denies such transgressions. "Unlike politicians, judges do not have agendas," she avowed in her Toronto speech. "They take the laws and the cases as they find them, and apply their interpretative skills to them as the constitution requires."

The gall of that statement is hard to credit, coming just one week after the Ontario Court of Appeal had flouted both the law and the constitution, by unilaterally enacting gay marriage into law. This week, the Law Society of Upper Canada held its annual, "Pride Week reception and forum" in Toronto. In announcing the event, the society noted: "The reception will include remarks from Chief Justice R. Roy McMurtry, of the Ontario Court of Appeal and one of the three justices who rendered the decision in Halpern et al v. Attorney General of Canada et al (the gay-marriage ruling)."

No doubt McMurtry got a rapturous greeting at that Pride Week reception as did the keynote speaker -- the like-minded and autocratic former Supreme Court of Canada judge Claire L'Heureux-Dube. Yet McLachlin would have us believe that in enacting the ideology of gay rights into law, judges do not have agendas.

McLachlin also claims that the, "notion that Parliamentary democracy resides only in majority rule is both false and dangerous … It offers no protection against the tyranny of the majority and it overlooks the need to accommodate and validate minoritarian views essential to long-term democratic stability."

Here we come to the nub of the dispute: McLachlin subscribes to the authoritarian view that unelected judges are better qualified than elected legislators to define the limits of minority rights.

To discover what the Fathers of Confederation would have thought about such judicial arrogance, McLachlin should peruse Canada's Founding Debates, a collection of speeches edited by a team of historians led by Prof. Janet Ajzenstat of McMaster University. Included in this compendium is an address to the Legislative Assembly of Canada on Mar. 9, 1865, by Richard Cartwright, a leading Liberal. To reassure French Canadians, he observed that parliamentary decisions have long been subject to checks of all kinds -- "many of them, more by custom and usage than by positive law" -- so that it has been, "all but impossible for any majority, however strong, to perpetrate any gross act of injustice on a minority, so long as that minority could command but one or two resolute representatives on the floor of parliament."

Cartwright's views on democracy were typical. McLachlin will search in vain through both the Confederation and Charter debates to find any parliamentarian suggesting that it's incumbent upon the courts to protect minorities, by routinely abolishing or amending statutory laws adopted by the majority. She and other judicial activists have taken this role upon themselves.

The gay-marriage ruling is a quintessential example of such judicial hubris: It defies the repeatedly expressed will of Parliament; has no basis in either the 1867 Constitution of Canada or the 1982 Charter; and overthrows centuries of legal precedents. In attempting to defend such judicial excesses, McLachlin has succeeded only in demonstrating her contempt for the historic principles of freedom under law in a parliamentary democracy.

Rory Leishman
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