Against Judicial Activism: The Decline of Freedom and Democracy in Canada.

Christopher English is a history lecturer at the Memorial University of
Newfoundland and a recent law-school graduate.

Among those who debate the proper role for judges (federal or provincial), commissioners (of labour boards or human rights, for example), or municipal magistrates, especially in the post-Charter (1982) era, “judicial activism” is a pejorative aimed at those who, as Lord Sankey put it in 1929, treat the law as a “living tree,” planted to meet the challenges of new and changed climates. The activists are charged with having broadened the terms, intent, and application of the Charter beyond recognition: they have usurped the historical and democratic jurisdiction of Parliament, the only state institution envisaged by the fathers of confederation in 1867 as defining the law of the land.

Leishman, a journalist in London, Ontario, has extensively researched the case law, and offers interesting insights into issues and personalities. It is tempting to remark that there is no believer like a convert. He admits to assent and high hopes for the Charter when it was first constitutionalized; he is now a bitter critic, outraged and frustrated at the degree to which initial hopes have gone sour. The rant is a familiar one and he adds little of substance to the attack on the judiciary mounted by Robert Martin in 1983 (CBRA, 1983, 4088). Leishman contributes by broadening the critique to include judges of courts subordinate to the Supreme Court of Canada, who were Martin’s target, and commissioners and adjudicators of quasi-judicial government boards. His megaphones are right-leaning commentators: Martin, Martin’s recently retired fellow law professor at the University of Western Ontario, Ian Hunter, and Professor F.L. Morton of the University of Calgary. Together they are footnoted at least 21 times in this jeremiad. Leishman brings us up to date on cases of the last five years which distress proponents of a strict and narrow interpretation of legislation and legal norms.

What have these stormy, outspoken, and sometimes intemperate critics to offer as a solution? For Leishman, the idea of abolishing the Charter appeals, but he fears that the judicial activists are too well entrenched. Politically, he admits, that proposal is unrealistic. Parliament and the provincial legislatures might exercise their constitutional override, but, again, they are unaccountably reluctant to use it. Ultimately, he prefers to look to the past and return to old practices and claims: reinstatement of the judge as passive and objective register through whom the law will be printed out.