F.L. Morton and Rainer Knopff wrote a book in 2000 lamenting the rise to power in Canada of what they called the Court Party. They defined the Court Party as a coalition of social interests that sought to use the inherent power of the courts to advance agendas rejected by elected legislatures.
Re-reading their book, The Charter Revolution and the Court Party, one is struck by the accelerating success of the party’s agenda and the continued decline of political democratic accountability in the intervening seven years.
Two recent examples, one initiated by a member of the judiciary, the other by the provincial Liberal government’s attorney general, illustrate the trend quite nicely.
As expected, Ontario Chief Justice Roy McMurtry retired in May to hosannas of praise and considerable fawning from the Court Party, in particular its sycophantic media wing.
After all, his 2003 Halpern decision legitimizing homosexual marriage was quintessential Court Party judicial activism, quite breathtaking in its willingness to not only strike down existing law but to impose an alternative remedy consistently rejected by Parliament.
That the decision rested on a s. 15 equality right that actually isn’t in the Charter of Rights (“sexual orientation”) but was “read-in” by other judges was simply icing on the Court Party cake.
And cake it was, as the famous photo taken a few days after the decision of a smiling McMurtry flanked by homosexual activists at the Law Society of Upper Canada’s Gay Pride reception proved a defining example.
Some people assert that McMurtry was just trying to compensate for his being (wrongfully) identified with the 1981 Toronto police bathhouse raids that so outraged homosexuals back when he was attorney general.
But that devalues his long-standing identification with “progressive” causes. It is fitting, for example, that his first public crusade after stepping down from the bench was to advocate abolition of handgun ownership; that is, to pick on a minority that all the proper people find acceptable to despise.
The knowledge elite who staff the Court Party hate guns and gun-owners for being among the last remnants of the dying Whig world of freedom from hierarchal state control, and long to apply the touch of the whip to such hold-outs.
But Halpern and gun-owner suppression actually pale as Court Party issues before McMurtry’s pre-retirement publicity campaign to have the federal government appoint Associate Chief Justice Dennis O’Connor as his successor.
I am unaware of any sitting or even retired judge who so blatantly attempted to pre-empt the constitutional role of the cabinet to make judicial appointments.
True, Court Party acolytes like to claim there is now a convention -“practices”- that governments should not exercise such a power, that the justice system should be “insulated from the policy preferences of temporarily elected governments,” as University of Toronto law professor Lorraine Weinrib put it in a Law Times column.
Whatever McMurtry’s motivation, the objective results of having someone with his great prestige - whose pronouncements have a tendency to be seen both by fellow lawyers and the media as coming from On High - so blatantly promoting O’Connor has to be seen as an attempt Ã la Weinrib to downgrade one of the few remaining democratic checks upon judicial tyranny. Fortunately, it failed.
The Court Party isn’t a conspiracy, of course, but as Morton and Knopff document, it is a grouping of the like-minded, a network of people in state-financed institutions that range from sympathetic outside pressure groups to law schools to legal aid clinics to law commissions to judges.
Their aim is social transformation, making Canada a “better” place, even if the public doesn’t want to go there, with particular attention to ensuring equality of social results through unequal treatment of those brought before the law.
And this brings me to Attorney General Michael Bryant’s resurrection of the Ontario Law Reform Commission, done away with by his predecessor Conservative government as being a waste of money.
Bryant wanted the commission reconstituted in such a way it “could not be torn down again,” and is quite proud of having accomplished that goal.
Although he said it initially proved difficult to get all the “partners” in the justice system around the table to support its re-creation and “to an extent, pony up,” he believes the resulting “firewall” is going to make it extremely difficult for a future hostile government to put out the commission’s financial lights.
He sees the commission as part-advocacy group and part-independent assessor for legal matters, the “only objective diagnosis and prescription for our justice system. Too much of [Ontario] justice reform comes from government,” he complained.
Such is the vision to a T of Morton and Knopff’s emerging Court Party tyranny: remove democratic accountability, substitute back room or “outside expert” decision-making, and structure it so that those elected by the people who pay the bills will have little or no say in matters that will deeply affect them in coming years.
Derek Nelson is a freelance writer who spent 19 years at Queen’s Park. His e-mail is email@example.com