National Affairs
Senior judges are not beyond politics
Claire Hoy
Some 25 years ago, when Ontario's soon-to-be-retired Chief Justice Roy McMurtry was Ontario's attorney general, his first public reaction to then prime minister Pierre Trudeau's Charter of Rights and Freedoms suggestion was harsh.

McMurtry, a practicing lawyer before entering politics, felt that Canada already enjoyed basic rights and freedoms thanks to some 800 years of English common law precedents.

He told the story of police in Los Angeles stopping a speeding car on an expressway only to find the choppedup body of the driver's wife in the trunk.

But because the man's Charter rights were violated, i.e. a court ruled the cops had no right and/or no reason to search the trunk of the car, that evidence was inadmissible and the man virtually got away with murder. Ah, how the worms turn.

Yet despite McMurtry's stated reservations about a Charter, he played an active role in helping to write the document which is just now approaching its 25th anniversary.

Then, having left electoral politics - and being a sufficiently left-leaning Tory to satisfy his good friend Jean Chretien, McMurtry was appointed to the bench and quickly turned into exactly the kind of Charter-centric judge he had originally warned the world against.

Not only that, he's proud of it.

In a weekend Toronto Star interview, the 75-year-old McMurtry dismisses those who say unelected "activist judges" often usurp the powers of elected representatives, saying, "much of the rhetoric that comes from the right is exaggerated and overblown."

McMurtry added, "When you look at what has happened since (the Charter), whenever legislation has been struck down by the courts for not meeting the Charter test, it has invariably been amended (by Parliament) without undermining the original legislative intent."

This is simply not true.

Just look at two major issues - abortion and same-sex marriage- where the courts not only over-rode elected representatives but ruled against the express wishes of Parliament in the case of abortion, and Parliament and nearly every provincial Legislature in the case of samesex marriage.

On abortion, Parliament had repeatedly expressed its' desire to have some restrictions, but the Supreme Court, in its ultimate wisdom and/or arrogance, "read in" its own version based not on what politicians wanted, but on their own ideological bias. As a result, Canada is the only country extant with no abortion law whatsoever. Attempts to correct this situation have met with absolute failure.

As for same-sex marriage, it was definitely court-made law and McMurtry was one of the major players as one of the authors of the original ruling legalizing same-sex marriages, a ruling he says he was "pleased to be part of."

No doubt he was "pleased," since it positively affected the same-sex partnership of his own daughter - which makes you wonder whether he should have recused himself on this issue - and Toronto's activist homosexual community hosted him and other judges at a party to celebrate the occasion. Is this really what judges should be doing?

Despite what McMurtry brazenly claims, the actions of his court and other courts in this matter did not support the original intent of either those who wrote the Charter, McMurtry among them, or subsequent Parliaments and provincial Legislatures, all of which had voted on numerous occasions to support the "traditional" view of marriage, i.e. a union between a man and a woman.

So what does McMurtry say to those Canadians who favor the traditional and established views of society? Essentially, they're stupid. "I don't think the traditional view or the majoritarian view is the correct view," demonstrating here was based on his personal belief system rather than the views of our elected representatives. Anyway, what do they know, since they obviously did not hold the "correct" view on the matter.

McMurtry makes one valid point, saying politicians could use the Charter's "notwithstanding" clause to overrule court decisions. Unfortunately, years of harping by critics - who, incredibly, argue that using this clause by Parliament would be "undemocratic," as if ideologicallybased judicial fiats are somehow "democratic" - has rendered the clause almost useless.

The main point, however, is that McMurtry's decisions, and others like his, put the lie to the spurious arguments that senior judges are beyond politics. The only way they are beyond it, in fact, is that unlike politicians, judges don't have to get elected. All they have to do is suck up to a prime minister or premier and it's jackpot time.

Which brings us to an interesting poll published by the Globe and Mail last month showing that 63 percent of Canadians asked favor the idea of electing our judges, a stark indicator that most Canadians are hardly cheering on the current judicial lottery winners.

Is it any wonder? Just listen to them talk.