New Supreme Court of Canada justices have no record of activism

  • November 2, 2011

OTTAWA - Christian observers with an interest in Canada’s courts are pleased — so far — that the latest picks for Supreme Court of Canada justices have shown no record of judicial activism on the bench.

Justice Michael Moldaver, a former Ontario appellate judge, and Justice Andromache Karakatsanis, a former Ontario government civil servant, were sworn in Oct. 27. A public ceremony will take place Nov. 14.

“They don’t have a judicial history of being activists,” said REAL Women of Canada national vice president Gwen Landolt, a former Crown prosecutor. REAL Women frequently intervenes in cases involving moral issues. “They have been strictly interpreting the law in their decisions.”

Landolt described the pair as “lawyer’s lawyers” who are not “putting their personal perspectives into place.” Evangelical Fellowship of Canada general legal counsel Don Hutchinson said both were “highly regarded” for their work on the Ontario Court of Appeal.

Moldaver has a criminal law background. Karakatsanis played key roles in the Ontario civil service, including that of deputy attorney general under then Ontario Attorney General Jim Flaherty who is now federal Finance Minister.

But Landolt said past performance does not necessarily preclude activism on the highest court. She pointed to the recent unanimous decision on the InSite drug injection site as an example of judge-made law. Two of Harper’s previous appointees, who had non-activist records, participated in the unanimous decision that she said usurped Parliament.

The Charter’s Section 7 on the right to life and security of the person was used to undermine Parliament’s right to control illegal drugs in the case, she said. 

Instead of Parliament deciding on crucial moral issues, the courts have been saying “we’ll decide,” she said. 

“Instead of independent, analytical legal decisions, they’ve really just bent the legislation to fit current trends,” she said, citing feminism and homosexuality among them. Religious freedom is not “trendy” even though it is mentioned in the Charter.

“They’re using their position to promote ideology and change Canadian society.”

Hutchinson said Prime Minister Stephen Harper’s power to shape the court is limited by the process that vets judicial nominees. A multi-party panel selected a short list of candidates.

“It’s hard to say that somehow they would be looking for a particular kind of activist or non-activist judge,” he said.

Both Hutchinson and Landolt said Parliament needs to reflect on using the “Notwithstanding Clause” in the Constitution that gives Parliament and provincial legislatures the ability to override court decisions.

“The clause is there for a reason, because Parliament does remain the supreme body in our democratic structure,” Hutchinson said.

Landolt said the court seems to have “thrown down the gauntlet” on the InSite decision, usurping parliamentary authority, but Harper said his government would comply with the decision. She warned, however, that if judges continue to override elected parliaments, “we really cease to be a democracy.”

“The Supreme Court’s always been an important institution,” said Catholic Civil Rights League executive director Joanne McGarry.

Many issues of moral consequence such as cases involving religious freedom and freedom of expression vs. human rights commissions and Canada’s prostitution law are either before the Supreme Court or could land there soon, she said.

“The League has always hoped more of these issues would be resolved in Parliament.”

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