Back in high school civics class we learned that government has three branches—executive, legislative and judicial. Our media help us pay no shortage of attention to our cabinet and our parliament. But do we study our judges enough?
All three branches have powerful ways of impacting us, yet the profile of the players on the judicial side of things is minimal. Part of this, of course, is due to the supposed objectiveness of legal process. "Better a good case than a good lawyer" goes the quip, where the weight of evidence, precedent, and argument are supposed to elevate the decisions beyond preferences of the decision-maker. Yet theory aside, most of us understand that the personal beliefs and values of our lawyers and judges do end up having an impact on the shape of our democracy.
Reading the profile of Vancouver lawyer Joseph Arvay in the October 2012 issue of Walrus magazine reminded me of this oft-neglected point. I had a vague knowledge of Arvay from his work on some landmark Supreme Court cases, and I might have guessed that he was the sort who'd be included on lists like Canada's 25 most influential lawyers. If his cases and supporters are an accurate reflector of his politics, we are in different camps, but by all reports he is one of the finer lawyers I could ever hope to hire should I find myself in need of representation.
Yet whether or not I ever hire Mr. Arvay, his work is shaping the democracy in which I live. Are we paying attention?
Michael Harris's fawning Walrus profile (titled "Civil Warrior") describes Arvay as someone who "has had more influence on contemporary life and values" than any other Canadian. "(O)ur defenders are people like Arvay, working with a small staff and no guarantee of pay," suggests Harris, noting that the work of Arvay has "become more charged and more relevant, because the laws that have emerged from the current government are so often accused of being unconstitutional." Lawyers like Arvay are pivotal players to whom we owe our rights, Harris argues, citing as evidence Arvay forgoing many legal fees (following the Conservatives' cancellation of the Court Challenges program) as "a practical kindness" to a gay bookshop owner out of principled support for the cause.
"In the absence of government support," gushes Harris, "the firepower that is Arvay has become almost entirely a function of one man's goodwill, hardly a solid grounding for civil liberties."
Harris's article shows the incremental strategy that has been implemented by the courts to define rights under the Canadian constitution, since it was amended in 1982 to include the Charter of Rights and Freedoms. For those who view the prominence of Charter litigation as the triumph of the "court party," as Rainer Knopff and Ted Morton foresaw a decade ago, it's a discouraging tale. Parliament being responsible for the defining of rights is "like asking children to please set their own bedtimes," Knopff and Morton write. But now, it's worse: "Instead the Charter declared that some matters were beyond the jurisdiction of elected officials and need to be parsed out in the courts."
What the Arvay story makes clear is that one can shape a society through a legal strategy carefully implemented as much as through a political campaign carefully orchestrated. In the midst of the various laments for democracy that occupy our op-ed pages these days, perhaps we ought to spend a bit more time reflecting on our judicial processes and the people who shape them, recognizing that this part of government too has a powerful role to play.