By Brian Lee Crowley
Halifax Chronicle Herald, Moncton Times and Transcript

WHAT TROUBLES we store up for the future when judges use the Charter as a means to reconstruct Canadian society to fit their personal prejudices.

Take the debate over gay marriage. Society has an interest in promoting and supporting the loving relationships on which households are built, whether the partners in those relationships are homosexual or heterosexual. In such relationships, people should have equal access to things like pensions and other benefits and equitable procedures in the case of the breakdown of the relationship. Thus, if we were to have a proper debate about the future of marriage, I would favour the creation of some kind of civil union giving official social sanction and status to gay relationships.

The “if” in that sentence, however, never came to pass. We started the debate. There had been discussions in Parliament, the matter was being studied. We were beginning to take the measure of Canadians’ attitudes. The diversity of opinion is wide, the differences sharp. And we were properly treating this as a political question, not a rights question.

People like to denigrate politicians because they are inveterate compromisers. But this debate shows how great and important is the function of compromise, brokered by skilled politicians. When there is a full and free debate and everyone’s feelings and thoughts get on the table, compromises and trade-offs are made. Rarely does anyone get exactly what they want, but we try to embrace the full range of mainstream opinion while safeguarding minority rights. Whether we get our way or not individually, the outcome has been legitimized by the political process and a large consensus usually emerges.

Not so for the courts. Judicial decisions are usually “winner takes all;” the judge’s job is not to reach a delicate balance between what, say, minorities want and majorities will tolerate. In the Charter era, they have the power to sweep aside millennia of social evolution and the deeply held convictions of a very large part of the Canadian population, as they have done with the traditional institution of marriage.

That may appear to be a great victory for gay marriage advocates, but how we reach decisions matters just as much as the content of the decisions themselves. The consequences of this judicial law-making power are far-reaching. Not least of those consequences is a coarsening of our social and political life. The art of compromise, by both politicians and the population at large, is lost. Minorities no longer have to engage in a dialogue with majorities about how their place in society is to evolve; social conflict becomes a battleground in which competing “rights claims” are used as weapons, the outcome in the hands of inscrutable and unaccountable judges.

Not having gone through the painful compromise building that the political process presupposes, the support for judicial decisions hangs by a very slender thread. While polls show that judges have Canadians’ respect, that is largely the result of a confusion. Judges are believed to apply impartially the majesty of the law, a law they allegedly do not make. How attractive, compared to the base compromises and trade-offs of the political world.

But that respectability is vulnerable as the true character of judicial activism under the Charter is revealed. People may not like what politicians do, but at least they can throw the rascals out at the next election. Under the Charter, judges have arrogated to themselves the power to make up the law as they go, based on an elite world view that is not widely shared by Canadians. The gulf between what Canadians believe and what the law constrains them to do is growing dangerously and unsustainably wide.

Of course, some will argue that is simply the way rights work: You either have a right or you do not, and if you do, a minority of one must be able to prevail against the largest majorities.

That does not mean, however, that we must all agree whenever some crotchety judge with bad digestion wakes up one morning and decides to create a “right.” There are basic rights that must not be abridged because they are essential to the democratic process by which laws are decided, things like freedom of speech and assembly and association. There are similar rights that constrain dangerous coercive state power, like due process, security from arbitrary search and arrest, and improper interrogation techniques. There is a broad consensus on what these rights mean and why they must be protected.

But the Charter has given licence to judges to pull rights out of hats like rabbits. While everyone likes a good bit of legerdemain, it is no basis on which to build a society that respects fundamental rights as well as the fundamental role of politics in the evolution of our society. If judges decide that Canadians have a “right” to short waiting times for medical care, or to a minimum income, or to equal incomes, or that brothers and sisters have a right to marry (and all of these things are issues that have or may come before the courts), they may be able to impose their will. But they can only do so by dressing up their own political prejudices in the borrowed moral clothing of genuine rights. By such “rights inflation,” they cheapen the real rights we must all defend, and undermine the prestige of the courts and the Charter.

Brian Lee Crowley is president of the Atlantic Institute for Market Studies, a public policy think tank in Halifax. E-mail: bcrowley@herald.ns.ca