The Most Dangerous Branch: How the Supreme Court of Canada Has Undermined Our Laws and Our Democracy

Robert Ivan Martin, The Most Dangerous Branch: How the Supreme Court of Canada Has Undermined Our Laws and Our Democracy (Montreal: McGill-Queen's University Press, 2003). 320pp. Cloth. $39.95 CA. $39.95 US. £30.50. ISBN 0-7735-2614-5. Let there be no mistake. Robert Martin's title sets out his fundamental contention with admirable clarity. The Canadian Supreme Court has in his mind become dangerously powerful. Judges aspire to be political and constitutional oracles rather than careful assessors of legal requirements. Law schools and law clerks are offering behind-the-scenes encouragement to the judicial advance and people have become obsessed with an expansive agenda of equality rights. Feminists are argued to be in the ascendancy and judicial activism is running rampant. Martin's boldly enters the fray to draw attention to the ill-advised transformation and to alert society of the pitfalls ahead. There is no shirking and a call to restrain the judicial onslaught is proclaimed. On its behalf let it be said that Martin's book is clear as to its objective. Battle lines are drawn and those deemed incompetent and/or dangerous are singled out. Few members of the legal-judicial community emerge unscathed. The Canadian Bar Association is derided as 'little more than a social club' (p. 193) while the work of a recent justice on the Supreme Court is labelled 'as a major national disgrace' (p. 195). In fact Martin asserts that 'A theme to which this book keeps returning is that of judicial lawlessness' (p. 99). Judicial claims to oracular wisdom and understanding of social problems are questioned as overweening. Judicial commentary on social ills is regarded as often vacuous and self-indulgent. Attack and criticism flow freely from Martin. Observe, for example, is reaction to the Supreme Court's judgements regarding freedom of expression. After expressing scepticism about their ruling in the famous Keegstra case, he declares that this judgement 'illustrates the Court's unprincipled and politicized approach to constitutional litigation and amounts to saying that the judges will uphold freedom of expression only when it suits their fancy to do so' (p. 56). The attack is not limited to these villains. In his discussion of sexual assault cases and rulings Martin takes on the people who aspire to serve those who feel themselves to have been victimised. Readers are warned that 'There is in Canada today a large and determined band of charlatans who call themselves counselors and therapists' (p. 141). Chapter seven meanwhile carries the title 'The Matriarchy in Charge' and begins with the declaration that there will be examination of the assorted 'ways in which feminists and feminist ideology have come to dominate our legal system' (p. 124). It is difficult in fact to keep track of all those whose performance and values are found wanting by Martin. The author makes his argument largely through reliance upon reference to assorted judicial rulings and extensive quotations. The writing is generally clear and often charged with passion. The reader is presented with a spirited account of events and trends as seen through Martin's eyes. He sees a pervasive and continuing enlargement of judicial power and believes that it is unwarranted and unconstitutional. It is Martin's claim that there has been in Canada a 'judicial coup d'etat' (p. 178). Canadians are called upon to perceive the associated dangers and act. …

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