REPORT, March 3, 2003, p. 8
The [Canadian] Charter a judicial coup d'etat
If voters don't support change, government can pay to take it to court
BY JOANNE BYFIELD
On December 20, 2002, the Supreme Court of Canada (SCC) overturned a decision by the Surrey School Board that would have kept gay-friendly books out of kindergarten and Grade I classrooms. James Chamberlain,
a kindergarten teacher and homosexual activist, took the board to court when it refused his request to introduce
Asha's Mums and several other books to his class. The court said that trustees had given too much weight to parents concerned about the morality of homosexuality. What if there were homosexual parents with children who might be adversely affected? Calgary Alliance MP Jason Kenney was astonished. "Every conservative lawyer I spoke to before the decision came down," he commented at the time, "told me there was no way the court would overturn the boards decision."
Perhaps they have not been paving attention. The causes that win court challenges in Canada are those that get government grants, and gays top the list. The Surrey decision was but the latest in a string of court- and human-rights-commission rulings that have established homosexual rights, even though Parliament deliberately excluded any mention of them in the Charter of Rights and Freedoms in 1982. In the Surrey case, the Supreme Court did not even have to invoke the Charter of Rights; it merely reinterpreted a clause in the School Act promoting secularism. In doing so, it overturned the decision of an elected school board that had overwhelming support from the parents it represented.
Public opinion is far less influential in shaping public policy than special interest groups, especially groups favoured and funded by the federal government. These are many and diverse: feminists, homosexuals, criminals, environmentalists, multiculturalists and minority-language groups.
University of Calgary political science professors Ted Morton and Rainer Knopff have labelled these groups collectively the "Court Party" because they seek to push their agenda through the courts rather than through democratically elected governments.
Their success since "rights-mania" took hold in the 1960s, and especially since the Charter of Rights took effect in 1984, has been dramatic. In their 2002 book
The Charter Revolution and the
Court Part, Profs. Morton and Knopff note that the Supreme Court of Canada dealt with 10 times more constitutional-rights cases in the 16 years after the Charter than in the 20 years before that under the federal Bill of Rights.
An analysis of Supreme Court decisions by graduate student James Kelly found that of the 35 cases brought under the Bill of Rights, only five were successful. By contrast, of the 390 cases under the Charter, 130 rights-seekers were successful. By 1999, the court had struck down 65 government statutes under the Charter, compared to only one under the Bill of Rights.
What had changed, oddly enough, was not a huge expansion of enumerated rights, but the attitude of judges. As Ted Morton points out in his book
Law, Politics and the judicial Process
in Canada, Charter rights were, with three additions, merely repetitions of those in the Bill of Rights.
Nor does the Charter order judges to rewrite laws, or "read in" new "analogous" rights, as many people seem to think. It merely allows them to. if, in their opinion, the Charter is being breached. The question arises: "Should the opinions of appointed jurists out-weigh that of the elected lawmakers?" Prof. Morton argues that the judges under the Bill of Rights still exercised a tradition of "self-restrained and deferential" interpretation of the document. They believed in the supremacy of Parliament as the law-making arm of government.
Post-Charter judges have felt less restrained. Provincial courts have recently used the Charter to force government spending on sign-language interpreters in hospitals, pricey early-intervention programs for autistic children and rollbacks of provincial budget cuts in Ontario. The courts, in effect, have ordered governmentsin these cases, provincesto spend money to meet what they feel are Charter obligations.
Judicial power-snatching did not begin with the Charter, however; there were earlier signs of it. In 1975, for example, the Supreme Court convinced Prime Minister Pierre Trudeau to restrict the right of appeal. Now the court decides who can appeal based on its own undefined notion of "public importance."
But the biggest booster of court power was the rise of special interest groups. Chief among these were feminist groups, who were consulted about the wording of the Charter in the early 1980s. Minority-language groups, First in Quebec and later in the other provinces, also brought many cases before the Supreme Court and often won. More recently, groups advancing homosexual rights have also exerted influence. Both feminists and minority-language groups were bolstered with hefty grants from the federal treasury very early on. In 1977, the Trudeau government founded the Court Challenges Program (CCP), specifically to assist groups to oppose the new Parti Quebecois government's restrictive language laws. In 1985, the Mulroney government expanded the CCP to include selected "equality" cases under the Charter. They surrendered control of the $9-million fund to the left-liberal Canadian Council on Social Development.
University of Western Ontario political science professor Ian Brodie, author of
Friends of the Court, points out that the whole
thing comes down to the government funding special interest groups to allow itself to lose in court. The CCP actually set up some of the groups in order to fund their lawsuits: for example, the Canadian Prisoners' Rights Network, which helped win the right to vote for federal inmates.
In the late 1980s, when Joe Borowski went (without government help) to the Supreme Court to establish that Section 7 grants the unborn the right to life. The CCP funded the Women's Legal Education Action Fund (LEAF) to oppose him. The pro-Family group REAL Women applied without success for funding to intervene on behalf of Mr. Borowski.
In 1992, the Mulroney government shut down the CCP, but the Chretien government resurrected it in 1995 as an independent corporation run by many of the people whose groups had been funded by it. Shelagh Day of Vancouver, for example a founder and former president of LEAF, became a co-chairwornan of CCP's equality panel. The new independent body was no longer required to disclose which cases it funds, or how much money it spends on them. No one, even in the government, now knows how CCP spends its almost $3 million of taxpayer money each year.
|Feminists have been among the most active of the Court Party groups, usually by invoking section 15 of the Charter which prohibits discrimination based on "race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability." (In 1995 in the
Egan case, the court added or 'read in" sexual orientation to the list.) Of the 47 feminist cases brought to court between 1982 and 1996, 72% were successful. These included cases on abortion, discrimination in the private sector and pornography. In the
Butler pornography case, feminists successfully argued that erotic material was pornographic if it objectified women, not because it offended public morality. At least one feminist testified as an expert witness to support the "artistic merit" claim in Robin Sharpe's 2002 child-pornography trial.
Prof. Brodie notes that many recipients of CCP money also get additional funding from the federal Secretary of State, although the total amount of Ottawa's largesse is impossible to determine. At first. Ottawa disclosed any expenditure of $10,000 or more, but this was later raised to grants over $50,000 and is now set at $100.000.
Prof. Brodie's best guess is that the Secretary of State funnels between $20 million and $30 million a year to interest groups. In addition, aboriginal claims are entirely funded by the federal government through Indian Affairs. He says about half the funding for women's groups comes from government, as does one-third to one-half of the funding for multi-cultural groups.
Mark Milke, author of Tax Me,
I'm Canadian, federal MP John Bryden, a rare Liberal critic of government funding to political causes of any sort, annual federal funding for all charities and non-profits (he includes hospitals) at $19 billion. Mr. Milke says the Status of Women Secretariat under Heritage Minister Sheila. Copps hands out $10.8 million a year in grants and contributions. The National Action Committee on the Status of Women, whose federal funding was reduced in recent years, received almost $4 million during the 1980s, compared to the conservative REAL Women's $89.000 over 20 years. Many of these feminist groupsLEAF, for examplealso have a charitable tax number and can issue receipts for donations, even though much of their work is political lobbying. Mr. Milke, former director with the Canadian Taxpayers Federation, notes that these groups would probably fold if not funded by the government because they do not enjoy strong public support.
Whether they have public support or not, however, they have been very successful. As authors Morton and Knopff point out, "While formal constitutional change is purposely made difficult to achieve and is thus rare, real change can and does occur in incremental fashion through judicial interpretation. Each judicial interpretation is like a mini-amendment."
Tax-funded lobbying has changed Canada
In 1982, a handful of professional, connected, white women in Toronto set down a plan for what was to become the Women's Legal Education and Action Fund (LEAF), one of the most successful of the Court Party groups. Mary Eberts, Beth Symes, Beth Atcheson and Jennifer Stoddart put together a plan to establish a litigation fund for women's issues. They received funding from the Secretary of State, $18,000 right at inception and an additional $232,000 later the same year, recalls Gwen Landolt, founder of REAL Women of Canada, a pro-family group. Even though their completed plan was not unveiled until 1984 and the group did not officially launch until 1985, the federal government got them off to an early start.
The Charter of Rights had been proclaimed in 1982 but included a moratorium on "equality rights" for three years. That gave the group time to enlist sympathetic lawyers and feminists to audit Canadian laws and see what was needed to "positively accommodate sex-specific situations." They quickly ruled out suggestions for separate provincial funds, and opted instead for a national, centrally managed one. LEAF would be very "discriminating" in picking cases, selecting or setting up only those which advanced a predetermined strategy and with a good chance of winning incremental changes. The women wanted to be the litigators rather than intervenors. Litigators, they reasoned correctly, could set the agenda and terms, whereas interveners could only respond to the original case.
In addition to litigation, the group decided that public education and lobbying were crucial. They enlisted support from academics, lawyers and the judiciary for a theory of equality. This would involve writing articles in law journals, presenting papers at conferences and leading workshops, and training sessions for judges. They would also establish relationships with people in the media.
Many of the women involved in LEAF were lawyers with high-profile Toronto firms. Sherene Razack, author of
Canadian Feminism and the Law, says that of the 17 board members, 11 were lawyers or human-rights professionals. By the end of 1984, relying on their "traditional networks," they had collected $150,000 from the Jackman Foundation, $117,000 from the Federation of Women Teachers of Ontario, and some smaller donations. They also continued to apply for and receive government grants.
Through skilful networking, they would engage law professors to pen favourable studies in law journals, which LEAF and others would use in court. They recruited the allegiance of feminist law students and helped fast-track them from school straight to the Supreme Court to assist judges in research and writing decisions. Authors Morton and Knopff relate how Mary Eberts told audiences following the 1988 Henry Morgentaler trial, which struck down the abortion law, that LEAF'S "contacts" within the Supreme Court kept them regularly apprised of the direction the case was taking. The authors suggest that the sources were probably clerks and former colleagues from law school.
One of the early setbacks for the LEAF plan, says author Razack, was that men began going to court to fight under the equality provisions, "a trend of disturbing significance." This meant that LEAF was compelled to intervene in these to defend rape-shield protections, maternity benefits and other advantages women had won earlier. LEAF organizers were upset that men were now using the very equality sections they themselves had helped design.
Nevertheless, in the almost 20 years since its inception, LEAF, by taxpayer money and a sympathetic court, has advanced the feminist agenda very much according to plan.