Subtitle: "The Decline of Freedom and Democracy in Canada."
This
fair assessment is offered in the
Osgoode Hall Law Journal.
You can also read the
introduction to the book here.
Gregory Klages -
Quotations from, and comments on:
Against Judicial Activism: The Decline of Freedom and Democracy in Canada
"there is not now, and never has been, any mention of sexual orientation in the Canadian Charter of Rights and Freedom.
"in
Egan v. Canada, 1995 SCC, the Court read sexual orientation into the equality rights provisions of section 15 of the Charter...
"In
M v. H., 1999 SCC, the Supreme Court of Canada followed up on
Egan and
Vriend by decreeing that the denial of spousal benefits to same-sex couples under the Ontario Family Law Act was inconsistent with the allegedly implicit equality rights of homosexuals in section 15 of the Charter to an extent that could not be demonstrably justified in a free and democratic society.
"In an attempt to limit the adverse impact of
M. v. H. on marriage and the natural family, the Canadian Alliance proposed a resolution in the House of Commons on 8 June 1999 declaring: “It is necessary, in light of public debate around recent court decisions, to state that mar- riage is and should remain the union of one man and one woman to the exclusion of all others, and that Parliament will take all necessary steps within the jurisdiction of the Parliament of Canada to preserve this definition of marriage in Canada.” Prime Minister Jean Chrétien supported this Opposition resolution.
"With the backing of most Liberal and Progressive Conservative members of Parliament, this Canadian Alliance resolution upholding the historic definition of marriage in the common law of Canada was adopted by the overwhelming margin of 216 to 55.
"In reaction to these illegitimate rulings, Parliament could have invoked its power under the notwithstanding clause of the Constitution to enact a bill reaffirming the traditional definition of marriage. Chrétien rejected this option. He abandoned the formal commitment that he and his Liberal Cabinet colleagues had made just two years earlier
"...on 9 June 2005 when the Court handed down one of its rare right-wing decisions in
Chaoulli v. Quebec (Attorney General), 2005 SCC 35, which struck down the prohibition on private health insurance in the health and hospital insurance acts of Quebec.
"Under the venerable rules of the common law, freedom of association was so firmly guaranteed that an organization like Rape Relief had an unimpeachable right in law to accept or reject anyone – homosexual, heterosexual, bisexual, or transsexual – as a voluntary rape crisis counsellor.
"Sensible precedents like
Canada v. Owen mean nothing to activist judges and human rights adjudicators. They prefer to read their own ideological preferences into the law by subjecting the plain words of the text to large, liberal, progressive, and idiosyncratic interpretations.
"...the Supreme Court of Canada has twisted the original meaning of the Charter out of all recognition. Take, for example, the purported guarantee of freedom of con- science and religion in section 2(a) of the Charter. Under the guise of upholding this guarantee, the Supreme Court of Canada contrived in
R. v. Big M Drug Mart, 1985 SCC, to strike down the longstanding Sunday-closing provisions in the federal
Lord’s Day Act.
"In an aptly entitled book,
The New Anti-Liberals, Borovoy notes: “The terms of the government’s proposed injunction were so broad that they could arguably have prohibited even silent, peaceful, information picketing within easy view of the abortion clinics. A restriction against physical obstruction is one thing; a ban on informational picketing is another thing entirely.” When Boyd obtained the picketing injunction on behalf of Rae’s NDP government, Charles Harnick, speaking for the Official Opposition, denounced the measure as an attack on freedom of speech. Yet after taking over from Boyd as attorney general of Ontario in Premier Mike Harris’s Progressive Conservative government, Harnick did nothing to get the injunction withdrawn. The infamous court order still remains in effect under the Liberal government of Premier Dalton McGuinty.
"...Gibbons once had an abortion. She is eager to protect vulnerable young women from making the same grievous error. To this end, she has insisted upon maintaining a peaceful, prayerful, and nonobstructive prolife witness immediately outside Toronto’s Scott Street abortion clinic in Toronto in violation of Boyd’s freedom-stifling court order. Time and again, Gibbons has been arrested, charged, convicted, and incarcerated. As punishment for her “silent, peaceful, information picketing,” she has spent close to four years in an Ontario jail as a prolife prisoner of conscience.
"The rule that judges of the common law must follow precedents is the doctrine of
stare decisis...
"In conformity with this understanding of the proper role of the judiciary, judges who uphold the rule of law and respect the constitutional separation of legislative and judicial powers do not, in essence, make the law: They only interpret and apply the law to the specific case before the court as the law is found in precedents, statutes, and the Constitution. Blackstone emphasized that in the case of statutes, the guiding rule for interpretation must not be the will of the judge but the will of the legislator
"...the principle affirmed by the Supreme Court of Canada in
A.G. Can. v. Hallet & Carey, 1952 SCC: “Statutes which encroach on the rights of the subject, whether as regards person or property, are subject to a ‘strict’ construction.” This phrase “
strict construction” is a technical term denoting the doctrine of the common law that requires a court to construe statutes as con- forming with civil liberties unless the wording of the law contains clear and definite language constricting a fundamental freedom or human right.
"There is no reference to sexual orientation in section 15 or any other section of the Charter. The omission was deliberate. During clause-by-clause consideration of the Charter by the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada on 29 January 1981, New Democratic Party (NDP) Member of Parliament Svend Robinson proposed an amendment to include a ban on discrimination on the basis of sexual orientation in section 15. The committee decisively repudiated Robinson’s motion by a vote of twenty-two to two.
"
Black’s Law Dictionary defines
obiter dictum as “Words of an opinion entirely unnecessary for the decision of the case.”
"...human rights tribunals have carried on as usual, ordering mayors from one end of the country to another to issue gay pride proclamations regardless of the preferences of ordinary citizens.
"...the Oakes test represents a power grab by the Supreme Court of Canada that has no warrant in the language or history of the Charter. Nonetheless, Finlayson conceded: “I must apply the Oakes test.” Finlayson had no choice. In the Charter era, he and all other judges on the provincial courts of appeal are no less bound than ordinary citizens to obey the decrees of the Supreme Court of Canada.
"In the opinion of Brockie’s counsel, facilitating the provision of “a non-life-essential service” to one or other of the groups singled out for special treatment in the Ontario Human Rights Code cannot justify a gross violation of the fundamental right to freedom of religion.
"...the hitherto universal and constant teaching of the Christian church that sodomy is no less sinful and wrong than fornication and adultery. In support of this viewpoint, these Christians cite authoritative texts of the Bible such as the explicit reference to the sinfulness of homosexual acts by the Apostle Paul in Romans 1…
GK NOTE: The use of 'authoritative' here is an intriguing bit of rhetoric. The New Testament of the Bible (which includes Romans) is authoritative to Christians only. Why Leishmann chose this piece of Christian scripture, instead of something from the Old Testament or Pentateuch is intriguing, as that would seem to engage a far wider selection of belief communities.
"Given all the heartache and morbidity caused by promiscuous homosexual behaviour, one might reasonably expect that educators, religious leaders, and public officials would do whatever they can to warn young people about the perils of taking up a gay or lesbian lifestyle. At the least, the merits of homosexual practices should be a legitimate subject for public debate…
GK NOTE: Clearly, Leishmann has a bee-in-his-bonnet over homosexuality. Would be admit - given the predominance of heterosexuals - that young people should be even more aware of the perils of taking up a heterosexual lifestyle, given all the heartache and morbidity that such a lifestyle causes?
"Whatcott has first-hand knowledge of the seamier side of the gay lifestyle. He was a homosexual prostitute and drug abuser before converting to Christianity at age eighteen.
"the gay rights agenda
GK NOTE: I find this sort of reductionist titling of political interests troubling, similar to the misnomer of the 'pro-life' agenda. If someone is pursuing the practice of human rights, or even of - gasp - libertarianism, is that equal to being a consumer/advocate of a 'gay rights agenda'?
"Prior to enactment of the Canadian Charter of Rights and Freedoms, it would have been inconceivable for the courts to change the law and the Constitution so that someone like Scott Brockie, Bill Whatcott, or Mayor Dianne Haskett could end up in jail for expressing their views on the lifestyles of sexually active homosexuals.
"
Morgentaler, 1988, was a legally unprincipled ruling in which a majority of the judges decided for a variety of conflicting reasons that the minimal restrictions on abortion that Parliament had enacted at Trudeau’s behest in 1969 violated the guarantee of life, liberty, and security of the person in section 7 of the Charter to an extent that could not be justified.
"In the judgment of the Court, the BC government’s failure to provide this translation service in publicly funded hospitals violated equality rights for the deaf as guaranteed in the Charter to an extent that is not reasonably justifiable in a free and democratic society.
"On 28 September 1981 the Supreme Court of Canada handed down its judgment in the
Patriation Reference. The ruling was a legal shambles. On the key issue of the legality of Parliament acting without provincial consent to obtain a constitutional amendment affecting provincial powers, the Court was clear: Seven of the judges who took part in the case, including Laskin and Dickson, held that there is nothing “that casts any doubt in law as to the undiminished authority of the Parliament of the United Kingdom over the British North America Act.” This same majority also concluded that “the law knows nothing of any requirement of provincial consent, either to a resolution of the federal Houses or as a condition of the exercise of United Kingdom legislative power.”
"In a joint dissent in the
Patriation Reference, they pointed out that: “The degree of provincial participation in constitutional amendments has been a subject of lasting controversy in Canadian political life for generations. It cannot be asserted, in our opinion, that any view on this subject has become so clear and so broadly accepted as to constitute a constitutional convention.”
"...the Chrétien government tried to clarify the issues surrounding Quebec separatism by referring the following questions to the Supreme Court of Canada: “1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally? 2. Does international law give the National Assembly, leg- islature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?”
"Theologically orthodox Christians and Jews hold that God is the supreme moral authority. Saunders gives precedence to the Supreme Court of Canada.
GK NOTE: Or… more accurately, the secular authority of the SCC's interpretation of the Charter. I'm not sure why Leishmann leaves out Muslim's belief in Allah. I wonder if there might be a implicit prioritization of what beliefs are correct for Canadians.
"Saunders explained that in her view: “Freedom of religion includes freedom from religion.” In support of this doctrine, she recalled that in striking down the federal
Lord’s Day Act in
R. v. Big M Drug Mart Ltd., 1985 SCC, Chief Justice Dickson stated: “Religious belief and practice are historically prototypical and, in many ways, paradigmatic of conscientiously-held [sic] beliefs and manifestations and are therefore protected by the Charter. Equally protected, are expressions of non-belief and refusals to participate in religious practice.” Therefore, Saunders concluded that the guarantee of freedom of religion in the Charter sanctions a law that imposes freedom from religion in the public schools.
"...the activist judges on Canada’s top court distorted the law to conform to their own ideological preferences in favour of having grade-school children indoctrinated in the acceptability of families headed by same-sex parents...
GK NOTE: "Indoctrinated." This phrasing suggests that without the intervention of the state/public education system, students would believe in something contrary to the acceptability of same-sex parenting. My convenience sample suggests that little children don't particularly care if another kid has two moms, two dads, or a dad and a mom, or for that matter, two dads and two moms. My sample suggests that kids care a lot more whether the kids around them are fun and interesting and willing to play nice. Perhaps those who are worried about the unacceptability of same-sex parents have been indoctrinated with that belief, and might benefit from exposure to contrary beliefs.
"Within Canada theologically orthodox Christians are in a minority, as are gay-rights activists. When the clashing viewpoints of these two minorities collide, McLachlin maintains that the gay-rights ideology must prevail. “This,” she insists, “is fair to both groups.” Faithful Catholics and Evangelical Christians might beg to differ. From their perspective, there is nothing at all fair about the judgment of the Supreme Court of Canada in Surrey. It constitutes an unprecedented attack on the democratic rights of all parents who uphold the traditional teaching of the Christian Church on the sinfulness of homosexual behaviour.
"In line with the reasoning in
Trinity Western, the Supreme Court of Canada is all too likely to rule that a teacher has no right under the Charter to refer a young student to any counselling service that might help him or her to avoid taking up a potentially lethal homosexual lifestyle…
GK NOTE: If our goal was to establish this right, then we should require the same for referring students considering a potentially lethal heterosexual lifestyle, joining the military, driving a car, smoking, or not wearing sunscreen. The critical problem becomes what proof of 'lethality' is required to justify the reference?
"To justify flouting the original understanding of the drafters of the Constitution, Sankey contended: “The
British North America Act planted in Canada
a living tree capable of growth and expansion within its natural limits.”
"What, however, has the Supreme Court of Canada done since the Canadian Charter of Rights and Freedoms came into effect in 1982? It has assumed the right to change the law and dictate national policies on abortion and euthanasia, on lesbian and gay rights, on Aboriginal land claims and fishing rights, on the admission of refugees and immigrants to Canada – the list gets ever longer. Our judges-
cum-politicians on the Supreme Court of Canada have laid down new rules governing the hot pursuit of murderers by the police. They have changed the rules on eligibility for spousal benefits under the
Old Age Security Act. They have mandated translation services in the nation’s hospitals and imposed two-tiered medicine on the Province of Quebec. In
Operation Dismantle v. The Queen, 1985 SCC, the Supreme Court of Canada even presumed to pass judgment on a key issue of national security. At issue was the decision by the federal Cabinet to permit the United States to test cruise missiles in Canada...
"...abetted by the Chrétien Cabinet, the Court broke the law and violated the Constitution by reading sexual orientation into section 15 of the Charter.
"On 14 January 2001 Bourassa and Varnell generated headlines across Canada by pledging their troth to each other in a simulacrum of a marriage ceremony at the Metropolitan Community Church in Toronto.
GK NOTE: The use of simulacrum here is pure rhetoric. If the ceremony was legally recognized, then how could it NOT be a marriage? It is a simulacrum only if the speaker refuses to accept the legitimacy of the act.
"In
Roth v. United States, 1957 USSC, the Court dealt specifically with the issue of obscenity in relation to the guarantee of freedom of the press in the First Amendment. Mr Justice William Brennan began his reasons for the Court by reviewing the legislative history of the First Amendment. Among other considerations, he noted that when the provision came into effect in 1792, every state had a law designating blasphemy and/or profanity as statutory crimes. Consequently, he concluded that the unconditional phrasing of the First Amendment was “not intended to protect every utterance.”
"...a product of the abstract and generalized nature of the rights protected by the Charter. The very process of defining the content of the rights protected by the Charter seems inherently political. Many of these rights – most notably the right to ‘equality’ and ‘liberty’ – contain little or no substantive criteria; they resemble blank slates on which the judiciary can scrawl the imagery of their choice.” John T. Saywell has expressed much the same view in
The Lawmakers: Judicial Power and the Shaping of Canadian Federalism. He holds that enactment of the Charter gave the Supreme Court of Canada a “mandate ... to fashion the law relating to rights and freedoms.” In the absence of any precedents for interpretation of the Charter, Saywell argues, “the court had a clean slate on which to write its constitutional prescriptions.”
"The 1960 Canadian
Bill of Rights declares in section 1 that Canadians are entitled to an array of rights and freedoms, such as “(c) freedom of religion; (d) freedom of speech; (e) freedom of assembly and association; and (f) freedom of the press.” Yet the Supreme Court of Canada did not treat these generalized rights as so many blank slates. Rather, in conformity with the canons of judicial restraint, the Court took the view expressed in 1993 by Mr Justice Ritchie in Robertson and Rosetanni that “the Canadian
Bill of Rights is not concerned with ‘human rights and fundamental freedoms’ in any abstract sense, but rather with such ‘rights and freedoms’ as they existed in Canada immediately before the statute was enacted.”
"Monahan notes the consequences: Having given content to these open-ended rights, the judiciary must then “balance” these rights against considerations of general welfare under s. 1.
"Stephen B. Presser, a professor of law at Northwestern University, has pointed out that the disposition of a majority of the United States Supreme Court to adopt interest balancing as an explicit mode of interpreting constitutional rights dates from the late 1930s and early 1940s. He bluntly affirms: “It is a jurisprudential approach that emerged when the Supreme Court abandoned the rule of law.”
"Hamilton rejected this argument. He wrote: The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.
"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former...
"...the Supreme Court of Canada amended the ban on the possession of child pornography in the Criminal Code by decreeing that perverts have a right under the guarantee of freedom of expression in section 2 of the Charter to make and possess for their private use the most repugnant and degrading forms of child pornography.
GK NOTE: Leishmann's rhetoric is off-putting. He may find child pornography offensive. Many people very likely do. Name-calling doesn't seem necessary to support a legal argument, however.
"The appellant in this case was a Vancouver man who had fathered two children with his adult daughter. Consequently, he was charged with violating the ban on incest in section 155 of the Criminal Code, found guilty at trial, and sentenced to five years in prison. Upon appeal, counsel for the father asked the Court to strike down the ban on incest in the Criminal Code on the ground that it violates the rights of incestuous men to life, liberty, and security of the person as guaranteed in section 7 of the Charter.
"Prior to enactment of the Charter and the onset of judicial activism, Canadians who had access to expert counsel could know their legal rights with a fair degree of certainty. Today, that is no longer the case. Activist judges predominate. They routinely flout rules fixed and announced beforehand. Like vacillating politicians, they lurch from one arbitrary ruling to another...
"In October 2002 Paul Martin had endorsed the idea of having judicial nominees vetted by a parliamentary committee
"In an address to the Faculty of Law of the University of Toronto on 6 February 1998, Chief Justice Lamer likewise opposed the idea. He pointed out that the views expressed by nominees to a parliamentary committee would not be a reliable guide to their behaviour on the bench. To illustrate the point, Lamer confided: “Had you asked me at a hearing if I was for or against [abortion], I would have said against.” Why, then, did he back the decision of the Supreme Court of Canada in
Morgentaler, 1988, to strike down the restrictions on abortion in the Criminal Code? Lamer explained: “My reasoning is that unless you have a vast majority of people think something is criminal, you should not make it a crime.” Note his rationale: Lamer made no reference to the current state of public opinion on abortion in his reasons for judgment in
Morgentaler, 1988. The conclusion is inescapable: His ostensibly legal reasons for judgment in that case were just a fig leaf to disguise his essentially political decision to strike down the country’s abortion law.
"If the Supreme Court of Canada had been able to draw upon the advice of a public interest officer, it might perhaps have avoided its disastrous judgment in
R. v. Askov, 1990 SCC.
"In a dissenting opinion supported by Mr Justice Charles Gonthier in Marshall, she flatly asserted: “There is no existing right to trade in the Treaties of 1760–61 that exempts the [Mi’kmaq] appellant from the federal fisheries regulations.”
"In Canada a limited version of the kind of constitutional authority recommended by Bork for checking the judicial subversion of legislative and executive powers is already available to our legislators. Section 33(1) of the Charter provides: “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in s. 2 or ss. 7 to 15 of this Charter.” Section 33 further provides that for these declarations...
"Parliament has never invoked the notwithstanding clause, and among the provincial legislatures, only the Quebec National Assembly has made extensive use of the provision. In June 1982 the separatist Parti Québécois government of Quebec prompted the Legislature to invoke section 33 to shelter every Quebec law from Charter review by the courts. After regaining provincial power in 1985, the Quebec Liberals allowed this blanket use of the notwithstanding clause to lapse, but they invoked section 33 in twelve other cases, including, most controversially, Bill C-178, the legislation enacted in 1988 that prohibited the use of English on outdoor commercial signs. Most recently, on 4 May 2005 Quebec education minister Jean-Marc Fournier announced plans to extend invocation of the notwithstanding clause in the Quebec Education Act for an additional three years from July 2005 to August 2008 so that the government can continue to fund Catholic and Protestant schools during this period despite any perception by the courts that this arrangement is incompatible with the guarantee of freedom of religion in section 2(a) of the Charter.
"Saskatchewan used it in 1984 to prevent the courts from interfering with a back-to-work law in a dairy strike. In 2000 the Legislature of Alberta declared that the traditional definition of “marriage” as between a man and a woman in the provincial Marriage Act shall apply notwithstanding the provisions in sections 2 and 7 to 15 of the Charter. However, this invocation of the notwithstanding clause was of no legal consequence because the definition of marriage is a subject matter that comes within the exclusive jurisdiction of Parliament by virtue of section 91(26) of the Constitution Act, 1867.
"In an article published in
Policy Insights on 1 October 2001, he observed that anyone who arrives in Canada and makes a refugee claim, no matter how transparently bogus, is entitled to free legal counsel and one appeal after another as the case winds through the system.
"The Charter was not, is not, and never will be necessary to safeguard the rights and freedoms of Canadians. However, the same 1982
Constitution Act that entrenched the Charter in the Constitution also saddled the country with a dead- lock-prone constitutional amendment formula that makes it all but impossible for Parliament and the provincial legislatures to get rid of the Charter…"
