Judicial activism has a proud history in Canada — one that started long before the proclamation of the Charter of Rights and Freedoms.

In 1929, the British Privy Council, then the highest court of the land, upheld an appeal from “the famous five” (Emily Murphy, Nellie McClung, Irene Parlby, Louise McKinney and Henrietta Muir Edwards) of a Canadian court decision that ruled that the word “person” did not include women.

The dubious prize at the time was that women could be appointed to the Senate, but the moral and legal significance of women being declared persons for the first time was highly important.

Critics of more recent court decisions — most notably those recognizing the rights of lesbians and gay men to have their relationships recognized by the state — should bear this history in mind (assuming that they agree with the proposition that women are, in fact, persons).

Even before the most recent decision, which required immediate changes to the marriage law as applied in Ontario, these critics were already calling for the collective head of the judiciary. “Under the assumed authority of the Canadian Charter of Rights and Freedoms the courts have moved beyond their traditional role as arbiters of legal disputes and into the realm of policy making. Indeed, they have become politicians,” opined Canadian Alliance Justice Critic Vic Toews in May.

The obvious point being missed by those who believe that judges are overstepping their boundaries is that the courts are stepping in when politicians have either refused to act or have acted in a manner that is contrary to the constitution (the highest law in Canada, also passed by Parliament).

Roy McMurtry, Chief Justice of the Ontario Court of Appeal (and, as Attorney General of the province in 1981, one of the authors of the Charter) wrote in 2000 that “it troubles me that elected politicians would be perhaps unreasonably critical of the role of the courts in interpreting the Charter when the invitation and the responsibility — and I should emphasize the word responsibility — was deliberately given to the justice system.”

In many cases, from abortion to same sex unions, politicians appear content to let the courts handle the tough issues. Far from being an indictment of the judiciary, this situation is more of an indictment of our politicians — and as clear a reason as any why minority rights need to be protected from “the tyranny of the majority”.

Errol Mendes, a University of Ottawa law professor, argues “if I read between the lines, what is happening is that politicians are throwing hot potatoes to the courts because they don’t want to deal with the issues themselves. The courts are either throwing it back or making the tough decision. And when the tough decision comes out, the side that is not happy with it then claims the court is influenced by party politics.”

The voices calling for the Chrétien government to show some leadership come from all sides of the political spectrum on this particular issue.

NDP Leader Jack Layton, who, like his party, supports same-sex marriage, said “It’s time for the Alliance, for the Liberals, for the Tories to come clean on a position for same-sex marriage. It shouldn’t have to be up to couples to spend thousands of dollars going off to court when Canadians clearly support the idea they should be able to be married like anyone else.”

Alliance strategist Rick Anderson (who surprised me and many others by speaking out in favour of recognizing same-sex marriages) argues that “Courts must interpret and apply laws, not make them. The helpmate of judicial activism is political lassitude& Legislators had plenty of opportunity to stand up and say, wait a minute, the Charter doesn’t say what you say it does&Or alternatively, we’re changing the law. Parliament and provincial legislatures have the tools to do either, but have done neither. I’m no fan of judicial activism. But before we blame this undemocratic mess on judges, let’s reflect a moment on politicians content to hide behind judicial skirts on contentious issues.”

It’s more than likely that the Liberals will act on the court decision by not acting at all. Rather than updating the laws to bring them into compliance with the constitution, they’ll simply let the decision stand and claim that they had no choice. That will ensure that Canadian law is fair and universally applied across the country; it will keep the significant minority of anti-gay Liberal backbenchers somewhat happy (although many of them are calling for an appeal); but it won’t quiet those who complain that judges are making laws.

If judges are making laws in this country, it’s only because politicians are too timid to do their jobs properly and too casual about ensuring that laws comply with the Charter.

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Scott Piatkowski

Scott Piatkowski is a former columnist for rabble.ca. He wrote a weekly column for 13 years that appeared in the Waterloo Chronicle, the Woolwich Observer and ECHO Weekly. He has also written for Straight...