David Frum November 15th, 1999 at 12:00 am
Canadian Prime Minister Jean Chretien has just announced that Supreme Court Justice Beverley McLachlin will ascend to its chief justiceship next year. This promotion has been cheered, in Canada and beyond, as a heart-warming symbol of female progress. Mr. Chretien must be very pleased: By focusing attention on his new chief justice’s sex, he distracts attention from his judiciary’s destructive record.
On the very day the McLachlin appointment was unveiled, fishermen in the Atlantic provinces were cutting each other’s nets and edging toward racial violence as a result of a September Supreme Court decision that Indians need not observe the fish-conservation laws imposed on whites in an effort to preserve Canada’s depleted east-coast fishery.
The fish case was a mere coda to an even more explosive decision handed down last year by the Supreme Court, which held that Indian tribes were the presumptive owners of all the real estate in the huge Pacific-coast province of British Columbia. In 1998, the Supreme Court also decided — on the basis of no textual authority at all — that Canada would be obliged to negotiate a secession agreement with Quebec if the French-majority province voted to secede.
The public’s reaction to the Supreme Court’s attacks on the ideals of national unity and equal citizenship regardless of race have been almost unanimously hostile. The public has had more trouble figuring out how to cope with the courts’ rewriting of the law of the person and the family. In 1988, the court voided all restrictions on abortion. In a 1997 case that arose when the Manitoba child welfare agency tried to force a pregnant drug addict who had previously given birth to two brain-damaged babies into a drug-treatment program, the court flatly pronounced that: “The law of Canada does not recognize the unborn child as a legal person possessing rights.” In 1998, the court came within one vote of recognizing a constitutional right to euthanasia. Over the past decade it has effectively abolished the institution of marriage, first by forbidding provincial legislatures to distinguish in law between married and cohabiting couples, then by forbidding them to distinguish between heterosexual and homosexual cohabitors.
Americans should understand that in acting as it has, the Canadian Supreme Court is not pursuing some idiosyncratic path of its own. On the contrary, the authorities Canadian courts cite when they embark on their radical projects are almost always the gurus of American liberal legalism: Ronald Dworkin, Laurence Tribe, Catherine MacKinnon. Since 1982, when Pierre Trudeau grafted a justiciable Charter of Rights onto Canada’s 1867 Constitution, Canada’s courts have become for the legal left what Spain was for the Wehrmacht in the 1930s: a place to test the tanks and dive-bombers with which it intended to do even greater damage elsewhere.
Catherine MacKinnon observed with satisfaction in her 1993 book “Only Words” that while American courts still adhere to the “stupid” theory that the law must do justice, Canadian judges make use of the law to impose their visions of radical equality upon their recalcitrant society: “The Canadian interpretation [of constitutional rights] holds the law to promoting equality, projecting the law into a more equal future, rather than remaining rigidly neutral…”
Neutrality is a quality nobody would ascribe to the Canadian courts. For preferred litigants, like gay-rights groups, they have cheerfully rewritten the law, writing into the Constitution protections for sexual orientation that were discussed and rejected when the charter was adopted. But they have adamantly refused to do the same for the rights of property and contract that were also omitted in 1982.
What Prof. MacKinnon calls the “Canadian” interpretation is of course the interpretation only of a narrow and self-selecting group. The big Canadian electorate is turning steadily more conservative. Strongly right-of-center governments hold power in Ontario and Alberta and a third will almost certainly come to power in British Columbia after the election expected in 2001. Mr. Chretien’s Liberals, by contrast, won only 39% of the vote in the 1997 federal election, and hold their current three-seat majority in the 301-member House of Commons only by the grace of the splitting of the conservative vote between the soft-line Progressive Conservatives and the harder-line Reform.
But thanks to the increasingly activist courts, the Canadian political left has been able to leverage its dwindling strength in the country into a near-absolute hegemony over the country’s law. The nine members of the Supreme Court are appointed by the prime minister at his sole discretion. The same one man appoints every other senior judge in the country. Indeed, many of those prime ministerally chosen lower courts are even more radical than the top court: the Supreme Court of British Columbia earlier this year created a constitutional right to own and view child pornography. It is against this background that the news reports describing Beverley McLachlin as a “moderate” must be read.
Justice McLachlin was born in the tiny settlement of Pincher Creek, Alberta, in 1943. She joined the top court in 1989. In a press conference on Nov. 5, she sought to distinguish herself from her immediate predecessor, the very ideological Antonio Lamer, by subtly reminding Canadians that she had dissented from the catastrophic fishing-rights case: “I think,” she said, “it is essential to good judging that the rule be sensitive to consequences, and judges, when they make rulings, give some thought to how their rulings are going to fit into the institutional matrix of society.”
But if Mrs. McLachlin is to be considered a moderate, it is only by comparison to the extremists with whom she shares the bench. She voted in favor of every one of the racial preferences for native Canadians up to the fishing case. She belonged to the pro-euthanasia minority and to the “no rights for the unborn” majority. She has been one of the court’s most reliable anti-marriage votes.
The recklessness of Canada’s courts is a problem for Canadians of course. It is Canadians who must deal with the consequences of their new legal order: an out-of-wedlock birth rate now rising past 25%, the destabilization of land titles, the crackling tension between whites and indigenous people, the increased likelihood of Quebec separation, the devaluation of human life. But the lessons to be drawn from the Canadian experience are universal.
Judicial arrogance nearly as extreme as Canada’s has in the past afflicted in the U.S. and could well afflict it in the future. It’s not exactly true, as Mr. Dooley once quipped, that the Supreme Court follows the election returns. But those returns do make a difference, and Americans might want to keep that in mind over the next 12 months.