BACK TO TABLE OF CONTENTS

BOOK REVIEW

THE MOST DANGEROUS BRANCH
(Telling it like it is about the Supreme Court of Canada)

By Robert Ivan Martin
published in 2003 by
McGill-Queen's University Press

"Canadian law professors have played a central role in the subversion of our law and our democracy." These controversial words were expressed by none other than one of Canada's law professors, Robert Martin of the University of Western Ontario Law School, who should know what he is talking about.

According to Mr. Martin, in his recent book The Most Dangerous Branch, Canada's legal scholars have largely abandoned any pretense of being academics and have, instead, turned themselves into propagandists and cheerleaders for a misguided Supreme Court. Martin claims that law professors in Canada have enabled judges to render bizarre decisions, which has resulted in a charade of justice in this country.

Mr. Martin reveals the peculiar process by which Supreme Court of Canada judges make their decisions. Each judge is assisted by three law clerks, recent graduates of Canada's law schools. These clerks root around for questionable social science papers, as well as legal opinions published in law journals, often written by their own off-the-wall law professors, to back up their novel interpretations and approaches to the law. The result is that the decisions handed down by these judges have become political rather than legal. The average salary, by the way, for these judicial law clerks is $41,662: the total annual cost to the taxpayer for these 27 law clerks is $1,124,874. However, what is really alarming about these law clerks, according to Mr. Martin, is that there is reason to believe that the judges of the Supreme Court may not even be writing their own decisions, but instead in some cases are allowing their clerks to draft their judgments for them!

There is a serious problem with this approach to legal decision-making: opposing parties in a case are often unaware of material used in reaching a decision and, therefore, have no way to question its credibility or rebut the arguments introduced. This problem occurred in the infamous Morgentaler (1988) Supreme Court of Canada decision in which the majority decision was based on a document, i.e. the Ontario government's Powell Report on the operation of abortion law in that province, which was written by a high-profile pro-abortionist, Dr. Marion Powell. This document was not even in existence when the Morgentaler case was argued before the Court in October 1986, but was released three months later in January 1987. Yet this controversial, biased report served as the basis for overturning the abortion law by four of the nine judges, including the then Chief Justice, Brian Dickson. The moral to this story is that judges should be required to base their decisions on the facts and arguments before them - not on after-the-fact material introduced without the knowledge of the opposing parties in a case.

The problem is that the non-elected, unaccountable judges on the Supreme Court of Canada are imposing their own views (or possibly those of their law clerks), and abandoning both reason and principle in doing so. Mr. Martin asserts that personal preference and personal power now guide the judges in their review of legislation, which has created not constitutional, but judicial supremacy.

That is, according to Mr. Martin, the Supreme Court of Canada has abandoned all pretense of treating all cases alike, and instead largely decides cases on the basis of the judges' personal ideological prejudices. Martin claims that by doing so, there is no longer a legal system in Canada because judges are no longer guided by law, but by the demands of the prevailing orthodoxy. For example, "a woman's right to choose abortion" or "equal rights for homosexuals" are the basis for reaching some court decisions, not the law. In short, Mr. Martin believes the judges have politicized their role, with the dominant orthodoxy of the day becoming the primary determinant of decisions. This, combined with the political acceptability of the group bringing the legal challenge, determines the outcome of the case. Mr. Martin states, "It is likely that no element of the orthodoxy is regarded as more fundamental and deeply-rooted in the judges than the belief in the desirability of abortion." Mr. Martin states further, "The enlightened in Canada think that abortion is just swell, and to raise questions about abortion is to mark oneself in the eyes of the enlightened as hopelessly ignorant and uncivilized."

Madam Justice Claire L'Heureux-Dubé

Mr. Martin saves his most scathing comments, however, for recently retired Supreme Court of Canada judge, Madam Justice Claire L'Heureux-Dubé, whose tenure, he claims, was a major national disgrace. Madam Justice L'Heureux-Dubé was certainly the most actively feminist judge on the Court, and also an unremitting supporter of the homosexual agenda. Time and again, Mr. Martin cites examples of Madam Justice L'Heureux-Dubé's decisions, which were obviously biased. He states that in reporting them, his aim is not to suggest that Madam Justice L'Heureux-Dubé is a particularly bad person. In fact, he states that in his honest opinion, she was given responsibilities that made demands that transcended both her intellectual and moral capacities. Her appointment to the Supreme Court of Canada, together with that of another highly biased feminist judge, Madam Justice Bertha Wilson, may be one of the best reasons yet for a change in the appointment system of judges in Canada. He provides a detailed critique of her vague judgements.

In the final chapter of his book, Mr. Martin outlines some possible remedies to solve the problem of our out-of-control courts. Included in his list, is that Parliament adopt several measures to depoliticize the Court, that it unplug the Court Challenges Program, (which recently had its funding renewed for another five years), that it stop the federal funding of the feminist legal arm, Legal Education and Action Fund (LEAF), which is one of the most frequent and successful litigants before the Court because of its "acceptable" political orthodoxy. Mr. Martin claims that it is deplorable in a democracy that taxpayers' money is being used to fund such sectarian political organizations in order to bring their agendas before the politicized court. Martin also recommends that the federal government assert S.33 of the Charter (the notwithstanding or override clause in the Charter) to reassert Parliamentary control over public policy.

Mr. Martin has written an amazing book, courageously exposing the truth about the Supreme Court of Canada, and the damage its arrogant judges are doing to Canada. His straight talk is a breath of fresh air in a country strangled by current political and social orthodoxy.

BACK TO TABLE OF CONTENTS