The supposed case against activist judges

John Geddes dissects allegations of "out-of-control lawmaking"

When Charles McVety, president of Canada Christian College, held a news conference on Parliament Hill this morning to raise the alarm about what he apparently views as an arrogantly aggressive Supreme Court of Canada, I paid close attention.

I figured McVety represents social conservative convictions that shouldn’t be underestimated in Ottawa these days, as demonstrated by the Conservative government’s stand against funding abortion with foreign aid dollars.

Speaking on behalf of an alliance of evangelical Christian and family-values groups, he called for Harper to “restore democracy” by filling any vacancies that might open up on the country’s top court with judges who won’t insist on writing their own laws.

McVety took aim in particular at Chief Justice Beverley McLachlin. He portrayed McLachlin as a sort of judicial-activism evangelist spreading the word to judges across Canada that they should invent and impose laws to suit their own anti-democratic purposes.

I couldn’t make much sense of his argument at the news conference. But he did cite three issues on which his group contends that Canadian judges have indulged in “out-of-control lawmaking”—allowing same-sex marriage, lowering the age of consent for anal sex, and legalizing two types of child pornography.

Imagining that these cases must illustrate the activism McVety is so upset about, I read up on them. Here’s a summary of what I learned:

1. In 2001, the Supreme Court of Canada ruled in a landmark child pornography case. Both a British Columbia trial judge and the B.C. Court of Appeal had thrown out the prohibition of simple possession of child pornography as an unjustified violation the Charter of Rights. But the Supreme Court of Canada overruled the B.C. decisions, ruling that violating the Charter to prohibit child porn is justified to protect children.

I would have thought McVety would approve. I certainly do. But McLachlin, who wrote the judgment, did allow two exceptions: “(1) any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use; and (2) any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use.”

Those are very narrowly defined exceptions—the first covering what might be found in a private diary, and the second making sure snapshots of kids in the tub aren’t outlawed. Is this really “out-of-control lawmaking”?

2. Same-sex marriage is, of course, a charged issue. Or at least, it was until most people got used to the idea. It’s true that in Canada the turning point came, not when any legislature passed a bill legalizing gay marriage, but when the Ontario Court of Appeal ruled to allow it 2003. That was judicial activism of a sort, no doubt.

Yet the Ontario court was not pushing back against the will of today’s elected governments so much as against the opinions of yesteryear’s judges. The definition of marriage thrown out was Lord Penzance’s indelible 1866 statement, “I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.”

Now, it would have been interesting to see what would have happened had judges inclined to allow gay marriage ultimately run up against determined efforts by politicians to reassert the venerable “one man and one woman” definition. But that never happened. The federal government didn’t appeal the Ontario decision to the Supreme Court.

Instead, the former Liberal government merely sent a so-called reference to the top court, politely asking if a new definition that encompassed same-sex marriages was okay. Yes, answered the court, unsurprisingly. Asked a hypothetical question about whether excluding same-sex marriage might also have been allowed under the Charter, the court declined to answer, since that option wasn’t on the legislative table. The Harper government has prudently decided against reviving the marriage debate, so it seems we’ll never know where the McLachlin court would stand if it ever had to wrestle with the matter.

3. I had no idea what McVety was talking about when he referred to those “out-of-control lawmaking judges” reducing the age of consent for anal sex to 14. Of course, I knew that Justice Minister Rob Nicholson recently succeeded in passing an amendment to the Criminal Code that raised the age of consent for any form of sex from 14 to 16, making it illegal for adults to have sex with someone under that age. (There’s a close-in-age exemption, by the way, so teens having consensual sex with other teens aren’t breaking the law.)

I phoned McVety after his news conference to ask what ruling on anal sex he was unhappy about. He directed me to an Ontario Court of Appeal decision from 1995. At that time, unmarried people under 18 could not legally consent to anal intercourse, even though they could to other forms of sex. The Ontario court struck down that distinction.

I can’t imagine why anyone would still be dwelling on this ruling 15 years later, much less putting it on a very short list of purported judicial excesses. Haven’t there been many more consequential judgments in the past decade and a half?

So I don’t see how any of the three cases McVety mentioned illustrate aggressive judicial activism, certainly not on the part of the McLachlin court. Prohibitions on child porn were upheld except in the narrowest circumstances; same-sex marriage was never appealed to the top court, as politicians of all stripes showed they don’t care to press the point; and the age of consent matter seems so marginal now it hardly warrants discussion.

If this is the best the social conservatives can do in taking on Canadian judges, there’s not much chance of this debate catching fire. I suppose I could safely have given that news conference a pass.

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