The Most Dangerous Branch: How the Supreme Court of Canada Has Undermined Our Law and Our Democracy

Christopher English is a professor of history at Memorial University of
Newfoundland and the author of A Cautious Beginning: The Emergence of
Newfoundland’s Supreme Court of Judicature in 1791–92.

A writer of an exposé may employ a rapier or a sledgehammer, but he
must wield it with care. He cannot afford to trip over his own feet or
to be outwitted by the enemy he seeks to expose. And not all cats can be
belled.

Despite the depth of his research and the passion of his argument,
Martin lets this one get away. Through overstatement, repetition, ad
hominem argument, and personal attacks, he detracts from the force and
cogency of his argument. Ultimately, he appears ridiculous: a
spokesperson for a disaffected fringe of cranks who blame judicial
misinterpretation of the Canadian Charter of Rights and Freedoms (1982)
by the Supreme Court of Canada for a host of contemporary legal and
constitutional ills. In sum, he maintains that nine arbitrarily
appointed judges, accountable to no one (and therefore undemocratic),
have been brainwashed by the perspectives, values, and arguments of
feminism, notably the Women’s Legal Education and Action Fund (LEAF),
an often-successful intervenor in cases before the court.

Martin discerns a judicial revolution that has marginalized Parliament
and the Canadian people, denying them the ability to govern themselves.
In the process, judicial restraint, legal principle, and objectivity
have been banished. In their place judges have enshrined interest
politics in the judicial system and legitimated intolerance,
doublethink, and inequality. Collective interests and continuities are
out the window; feminist propaganda, ideology (just like the Nazis), and
court decisions based upon a narrow, individualistic, and discriminatory
orthodoxy of thought and values permit no dissent. Lawyers, judges, and
law school professors have sold out to sociological hucksters. Martin
knows them and names them, repeatedly and in bitterly personal terms. He
has abandoned civilized discourse. What professional or personal slights
have contributed to this rant? The answer may come back that extreme
language is justified by the seriousness of the transgressions being
committed—the subversion of the Constitution driven by the
judicialization of politics.

But intemperate language risks jeopardizing the case. A critic who
accuses his enemies of hypocrisy and deviousness must appear squeaky
clean. Judges are besmirched partly for personal failings. But what of
an author who invites Senator Anne Cools to provide a long and
intemperate defence of his own thesis in the guise of an introduction,
and then proceeds to discuss her compatible views approvingly at least
five times, omitting three of them from the index? Through all of this
we recall the central defence to whatever charges commentators level at
the Supreme Court’s decisions: the federal Parliament legislated the
Charter. Federally and provincially the elected representatives of the
people have declined to intervene, either by invoking their (Section 33)
power to override judicial decisions in the short run, or to legislate,
within their constitutional jurisdiction, where they find that judges
have incorrectly filled a judicial void on language rights, abortion,
gay rights, or same-sex marriage, or have simply, against whatever
standard Parliament decides to invoke, got it wrong.