Against Judicial Activism

Against Judicial Activism: The Decline of Freedom and Democracy in Canada

RORY LEISHMAN
Copyright Date: 2006
Pages: 320
https://www.jstor.org/stable/j.ctt80c98
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  • Book Info
    Against Judicial Activism
    Book Description:

    Against Judicial Activism cites numerous cases to support this argument. For instance, the British Columbia Human Rights Tribunal and Supreme Court read a ban on discrimination on the ground of transsexualism as being part of the province's human rights code. On the basis of this revision of the law, the tribunal ordered the Vancouver Rape Relief Society to pay $7,500 to a transsexual man in compensation for refusing to admit him into a training course for rape crisis counsellors.

    eISBN: 978-0-7735-6001-7
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-2)
    Rory Leishman
  4. Introduction
    (pp. 3-18)

    On 17 April 1982 the Canadian Charter of Rights and Freedoms was signed into law. In the meantime, Parliament and the provincial legislatures have also progressively broadened the scope of their respective human rights codes. Together, these radical innovations in the Canadian constitutional order were supposed to safeguard the human rights and fundamental freedoms of Canadians. But have these new laws succeeded? Or have they served as an excuse for human rights tribunals and the courts to undermine freedom, democracy, and the rule of law in Canada?

    Prior to the Charter, Parliament and the provincial legislatures were supreme – that is,...

  5. 1 Judicial Activism versus the Rule of Law
    (pp. 19-46)

    The prolonged twisting and turning of the ongoing judicial confrontation pitting Kimberly Nixon and the British Columbia Human Rights Tribunal against the Vancouver Rape Relief Society affords a striking illustration of how human rights commissions and the courts have compromised freedom under law in Canada over the past twenty years. No compassionate person can fail to sympathize with Nixon, the complainant in this case. She has had a troubled life.¹ Although born as a biological male on 7 September 1957 and raised as a male during childhood, she claims that from the age of “around four or five,” she started...

  6. 2 Gay Rights Trump Freedom of Religion
    (pp. 47-68)

    On 7 October 1997 an Ontario human rights board of inquiry delivered an unprecedented blow to the historic rights of Canadians to freedom of expression by ruling that Mayor Dianne Haskett of London, Ontario, must issue a gay pride proclamation at the request of the Homophile Association of London Ontario (HALO).¹ In the opinion of the board, Haskett’s refusal on principle to issue such a proclamation violated the ban on discrimination on the basis of sexual orientation in the Ontario Human Rights Code. Like Rape Relief in theNixoncase, Haskett stoutly resisted this oppressive ruling. Instead of bowing down...

  7. 3 Trust Not in the Charter
    (pp. 69-104)

    In an article published in theLondon Free Pressshortly after the ruling by the Ontario human rights board of inquiry in the Haskett case, Professor Bruce Feldthusen contended that the purpose of human rights tribunals is not to imprison, fine, or otherwise punish malefactors but to remedy discrimination. He wrote:

    Human rights hearings are quite different from criminal trials. There is no Crown attorney, no charge and no accused. There is no finding of guilt and no power to fine or imprison. The purpose of human rights law is remedial, not punitive. If the adjudicators uphold the complaint, they...

  8. 4 How Human Rights Commissions Suppress Our Freedoms
    (pp. 105-134)

    The people of the United States are hardly less threatened than Canadians by the sweeping powers of contemporary human rights tribunals. Consider the experience of the Seattle Employees Association for Gays and Lesbians (seagl). In 1990 members of this city-sponsored group barred Philip Irvin, a fellow city employee, from attending their meetings because he is a Christian activist opposed to equality rights for homosexuals.¹ Irvin filed a complaint with the Seattle Office for Civil Rights² claiming that seagl was violating the city’s Human Rights Code by discriminating against him on the basis of his religious and political beliefs. Following more...

  9. 5 How Our Judges Have Become Politicians
    (pp. 135-164)

    To secure freedom under law in Canada, it will be necessary to curb the usurpation of legislative powers by the courts as well as by human rights tribunals. Prior to enactment of the Canadian Charter of Rights and Freedoms, it would have been inconceivable for the courts to change the law and the Constitution so that someone like Scott Brockie, Bill Whatcott, or Mayor Dianne Haskett could end up in jail for expressing their views on the lifestyles of sexually active homosexuals. Today, such a breakdown of freedom under law is all too likely. Since the Canadian Charter of Rights...

  10. 6 Escalating Judicial Attack on Christians
    (pp. 165-194)

    In the David B. Goodman Memorial Lecture delivered at the University of Toronto Faculty of Law in November 1985, Madam Justice Bertha Wilson drew a distinction between judicial activism and judicial restraint. She said:

    Those judges who advocate judicial restraint have a proper concern over their lack of accountability to the public and tend to think that any significant change in the law should be made by the duly elected representatives of the people. However, while constitutional principles may favour the exercise of judicial restraint, moral considerations may impel a judge in the opposite direction. All judges would like to...

  11. 7 The Chief Justice Defends Judicial Supremacy
    (pp. 195-237)

    In several articles and speeches, Chief Justice Beverley McLachlin has strayed deep into the political arena to defend the Supreme Court of Canada from charges of subverting the legislative process and undermining the rule of law. For example, in June 1999 she pointed out in an article published in the magazinePolicy Optionsthat the dispute over judicial activism “often reduces itself to a debate about whether one likes or does not like a particular judicial decision.”¹ On this point, there is no disputing: Some critics of the courts seem to think that all objectionable judicial decisions stem from judicial...

  12. 8 Reviving Parliamentary Democracy
    (pp. 238-272)

    Conor Gearty is a law professor and director of the Centre for the Study of Human Rights at the London School of Economics. On 11 December 2000 he generated a rousing debate with a provocative lecture entitled “What Are Judges For?” in which he discussed the changing role of the judiciary brought on by the British Human Rights Act, 1998, which incorporated the European Convention on Human Rights into the domestic law of Britain. Gearty contended that Parliament should hold appeal court judges accountable for their interpretations of the vague provisions of this Act. Members of the British judicial establishment...

  13. Notes
    (pp. 273-292)
  14. Bibliography
    (pp. 293-300)
  15. Index
    (pp. 301-310)