Vol. 15 No.12 (December 2005), pp.1060-1062

THE MOST DANGEROUS BRANCH:  HOW THE SUPREME COURT OF CANADA HAS UNDERMINED OUR LAW AND OUR DEMOCRACY by Robert Ivan Martin. Montreal: McGill-Queen’s University Press. 320pp. Cloth. CA $75.00/US $75.00/UK £57.00.  ISBN: 0773526145.  Paper. CA $29.95/US $29.95/UK £22.95. ISBN: 0773529179.

Reviewed by Mark Rush, Department of Politics, Washington and Lee University.  Email: rushm [at] wlu.edu

Scholars of comparative constitutional law and jurisprudence will unquestionably take interest in Robert Ivan Martin’s THE MOST DANGEROUS BRANCH.  Following in the line of other critics of the Canadian Supreme Court (see, e.g. Morton and Knopff 2000; Manfredi 2001), Martin offers a pointed criticism of the collective activism of the Canadian Court and the unabashed political activity of its individual members.   For anyone interested in a substantive discussion of the more controversial developments in Canadian constitutionalism since the patriation of the constitution and establishment of the Charter of Rights and Freedoms, Martin’s book will be an enlightening resource, but one of limited scholarly use.

Martin offers very little new material.  The work is an unapologetic polemic against what Martin regards as the hijacking of Canadian constitutionalism by various forces on the political left (or the political postmodern).  While Martin casts his analysis in terms of the proper role of courts and judges in a democracy, it is clear from the outset that his analysis is driven more by disagreements he has concerning specific decisions of the Supreme Court and public statements made by particular members of the court—especially Justice L’Heureux Dubé. 

Martin gets off to a reasonable start.  The study of constitutional law and jurisprudence has evolved far beyond the antiquated notion that judges “find law.” Schools of thought, driven by the critical legal studies movement, feminist analysis, the political jurisprudence, the attitudinal model and so forth, all have indicated that the analysis and development of law are colored by such factors as culture and personal beliefs.  In this same spirit, Martin opens with the assertion that judicial review in Canada is “seriously lacking in principle and reason and characterized to an unacceptable degree by personal preference and personal power” (p.5).  He therefore condemns the Canadian Supreme Court (and, by extension the Canadian legal academy), because its manner of making decisions has “compromised the structure and process upon which our constitutional democracy depends” (p.8). 

Martin contends that the perversion of Canadian constitutional law is due to the propagation of a new “orthodoxy” of intellectual, cultural and moral relativism that is fostered in the Canadian legal academy.  It promotes a postmodern, group-driven [*1061] conceptualization of identity politics and rights that debases notions of citizenship and individual liberty.  In light of the tenor and intensity of his opening arguments, it will not surprise the reader that it takes Martin only twenty-three pages before calling for the abolishment of the Supreme Court.

To the extent that Martin’s attacks are driven by his disagreement with the decisions of the Canadian Court, it would be easy to dismiss his analysis as nothing more than the complaint of one who finds himself on the losing side of a contemporary political battle.  On the other hand, if one pauses, it is easier to look past Martin’s anger and frustration and sympathize with him somewhat. 

Contemporary scholarship is rife with analyses that contend that law is gendered, racially biased, and so forth.  In this respect, Martin’s analysis actually compares with much of the scholarship that he criticizes.  Unfortunately for Martin, the scholars with whom he disagrees have gained more influence in the legal academy than Martin would prefer.  Whereas he might have represented the “canon” against which critical legal scholars and feminists direct their analyses, Martin now finds himself criticizing a new canon in which these opposing lines of thought have gained a foothold. 

Having said this, it is still important to point out some of the questionable aspects in Martin’s reasoning.  He offers a fair criticism of the Canadian Supreme Court’s practice of “reading substance in” to challenged legislation in order essentially to amend it on behalf of plaintiff groups.  Thus, the court has extended human rights protections to groups such as homosexuals (see, e.g., VRIEND v. ALBERTA) who were not included in legislation written to protect other groups.

This practice clearly amounts to a derailing of the legislative process and, when applied to the constitution, amounts to amending it by judicial fiat.  In the United States, the Supreme Court has struck down the line item veto because it altered the system of separated powers and checks and balances and essentially altered the constitutional definition of “legislation” (CLINTON v. CITY OF NEW YORK). The court ruled that this could not be done by ordinary legislation and therefore required a constitutional amendment. Since legislation as “amended” (either by judicial reading in or presidential editing out) might never have been passed by a parliamentary or congressional majority in the first place, Martin’s complaint about the Canadian judicial practice of “reading in” clearly resonates with concerns about the legitimacy of majority rule.

Nonetheless, Martin sometimes seems to overlook the obvious and to misdirect his criticism.  First, judicial power depends on cooperation with (if not support of) the other branches of government.  To the extent that the parliament and provincial legislatures acquiesce to judicial rulings (however controversial Martin may find them), one must conclude that they accept the decisions’ legitimacy. 

As well, Martin does not address the fact that Canadian legislatures are empowered to resist judicial encroachments by virtue of section 33 of the Charter (the notwithstanding clause). [*1062] While scholars, such as Manfredi (2001, at 4-5), have said that the notwithstanding clause has atrophied, it is nonetheless a part of the Charter and does provide the legislatures with a powerful defense against judicial activism.  So, why is it not invoked?

Part of the reason may be what Martin himself describes as “the obsession with rights and the flight from politics” in Canada (pp.43ff.).  The Charter establishes the power of judicial review, recognizes the rights of minority groups, and endorses affirmative action on their behalf.  Under these circumstances, the evolution of an activist court (or, at least, a court that is busier than Martin would approve) is hardly surprising.  Similarly, the Charter invites a vibrant culture of interest group litigation—especially when it is driven by the government-funded court challenges program.

All of this may be lamentable.  Martin is not the first Canadian scholar to voice harsh complaints and criticisms.  But, if Canadian democracy is in such trouble, why is there no popular outcry?  Throughout, Martin asserts that the elite avatars of orthodoxy (comparable to Nazi bullies—see p.195) hijacked the Charter-based political system and have sought to propagate their own vision of a just society.  He calls upon the Canadian people to resist them and “reclaim the country” from the court.

But, what is stopping them?  Perhaps the situation Martin describes and decries is not all that unpopular.  The polls are still open, and lawyers and scholars who agree with Martin can certainly mobilize to challenge this new orthodoxy. 

It may simply be the case that Martin has misread the Canadian populace.  Maybe they do not disapprove of the political environment created in the wake of the Charter.  On the other hand, it could also be the case that Martin (along with other critics of the politics fostered by the Charter) has indeed identified a serious threat to Canadian democracy and it simply will require time for them to capture the public’s attention.

In any event, the personal, ad hominem nature of much of Martin’s analysis will certainly test the patience of even the most charitable reader.  While THE MOST DANGEROUS BRANCH does represent an important and enduring aspect of contemporary Canadian constitutional politics that scholars of comparative politics ought to know about, readers would be better served by seeking out more balanced analyses of the subject.

REFERENCES:

Manfredi, Christopher. 2001.  JUDICIAL POWER AND THE CHARTER: CANADA AND THE PARADOX OF LIBERAL CONSTITUTIONALISM.  New York: Oxford University Press

Morton, F. L. and Rainer Knopff. 2000. THE CHARTER REVOLUTION AND THE COURT PARTY.  Peterborough, Ontario: Broadview Press

CASE REFERENCES:

CLINTON v. CITY OF NEW YORK, 524 U.S. 417 (1998).

VRIEND v. ALBERTA, [1998] 1 S. C. R. 493.

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© Copyright 2005 by the author, Mark Rush.