Against Judicial Activism:
November 6, 2006
The Charter will never become the main safeguard of civil liberties in Canada. The main safeguards will continue to be the democratic character of Canadian political institutions, the independence of the judiciary and a legal tradition of respect for civil liberties. The Charter is no substitute for any of these things, and would be ineffective if any of these things disappeared.
Rory Leishman, a columnist for the London Free Press, is here tackling one of the most celebrated innovations of modern Canadian jurisprudence. Adopted in 1982, the Canadian Charter of Rights and Freedoms in very short order has become the mainstay of the Canadian political and legal order.
A Culture of Rights and Freedoms?
To its admirers the Charter is one of the great accomplishments of Pierre Elliott Trudeaus prime ministership. (Then Chief Justice Antonio Lamer of the Supreme Court of Canada:
he [Prime Minister Trudeau] made an enormous contribution to the implantation of what I call a culture of rights and freedoms of the person in Canada.)
Leishman is of a different mind. He goes into great detail explaining that rather than reinforcing freedom in this country, the Charter has done the very opposite. His main criticism is that the courts have strayed into the area of policy and law making rather than restricting themselves to the task of interpreting the law. Or to put this in a different way: spearheaded by the Supreme Court of Canada, the courts have changed from a position of restraint to one of activism.
Such criticism hits at what is now widely considered to be a position of enlightenment and progress, and any one who disagrees will have rough going. The great advantage of this book is that the author has built his case by analyzing with meticulous care chapter and verse of what to many sounds like mumbo-jumbo. This is not an easy topic, but Against Judicial Activism deserves the careful attention not only of the political and legal practitioners, but it is also quite within reach of the serious non-experts.
The central theme of this book is that the Charter has been hijacked by those who want to fundamentally restructure Canadian institutions and habits in a hurry. The envisioned transformation is not a minor adjustment but one that has enormous consequences for the institutions of our nation and therefore also for the day-today lives of every Canadian citizen. Another way of saying this is that the so-called Charter revolution is driven by a worldview that considers the restraints and norms of the past to be roadblocks to true liberation and therefore to be assigned to the trashcan of history.
The defenders of this Charter-driven revolution want to assure us that all they are doing is updating rules and laws that no longer fit our modern age. They claim that what they are doing is bringing about a greater measure of fairness and justice especially for those who in the past have been treated as second-class citizens. But Leishman is not persuaded and insists that a number of time-tested principles of responsible government have been discarded, notably the traditional distinction among the three major branches of government; the legislative, executive and the juridical.
Leishman provides a helpful analysis of all the major administrative and court decisions guided by the Charter. His description of affected individuals, families, churches, schools, businesses, and other social entities is always enlightening and often shocking. He shows that the new court-ordered legislation, ostensibly intended to enhance personal freedom in reality has led to new forms of injustice and discrimination. Here is one such instance of maltreatment meted out to an exemplary Canadian citizen.
Linda Gibbons is a Christian, now a grandmother who once underwent an abortion and later became a prolife advocate. For years she has witnessed against the evil of abortion by picketing at a Toronto abortion clinic. Though the Charter rights include freedom of expression, in 1994 the Ontario attorney general issued a court order prohibiting picketing within fifty feet of abortion clinics. Gibbons has insisted on her freedom to maintaining a peaceful and non-obstructive vigil in the immediate vicinity of a Toronto abortion clinic. But this devout, Canadian citizen has spent off and on nearly a total of four years in jail as a prolife prisoner of conscience.
Even Alan Borovoy, as general council of the Canadian Civil liberties Association, objected to this anti-liberal court order with its broad prohibition against silent and peaceful information picketing, He wrote: A restriction against physical obstruction is one thing; a ban on informational picketing is another thing entirely.
Inventing New Rights Out of Thin Air
In June 1999 the House of Commons adopted a resolution, by a margin of 216 to 55, confirming that marriage 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. But the same Liberal Parliament meekly folded when the Supreme Court read in sexual orientation into existing human rights legislation and ordered the redefinition of marriage to include the union of two persons.
Leishman traces the convoluted arguments as these and similar cases wound their way through the rulings of various human rights commissions and tribunals and from there to lower courts, ending up before the Supreme Court of Canada. Previous Liberal governments steadfastly refused to use the notwithstanding clause of the Charter, thereby conceding the supremacy of the courts over the legislators.
(Section 33 of the Charter provides that Parliament or a provincial legislature may declare that sections 2 and 7 to 15 of the Charter do not apply to certain acts or provisions of these legislative bodies. Such exemption provisions must be renewed every five years.)
Against Judicial Activism at length details the troubles of those who have dared to speak out publicly about their disagreement with the new shibboleths. The long arm of the rights enforcers has reached into the lives of many Canadians who simply thought that they were living in a country where they enjoyed freedom of association and speech. Even city mayors were fined and faced potential charges of contempt of court unless they were willing to proclaim gay-pride days. Roman Catholic Bishop Fred Henry of Calgary was hauled before the Alberta Human Rights Commission because of a pastoral letter in which he explained his churchs teachings about such moral issues as abortion and same sex marriage.
Leishman finds that the Human Rights industry is driven by people with an agenda strongly influenced by a liberal/feminist mindset. Hearings are conducted without careful adherence to the rules and procedures designed to protect the rights of defendants. Often those sitting in judgement have been steeped in the ideology of victimhood but with little regard for the historic context of our common law tradition of freedom and fair play. Hearings and appeals can drag out a case over many years and at great cost.
The Supreme Court of Canada rulings analyzed in this book, in addition to the ones mentioned above, deal with such controversial issues as abortion, euthanasia, education, Sunday observance, pornography, drug testing of employees, Aboriginal land claims and fishing rights, the admission of evidence at trials, refugee and immigration policies, national security, and the right to speedy trials.
Leishman convincingly argues that many of the Supreme Court decisions have serious adverse consequences. A striking example is the case of the refugee Ahmed Ressam, who lied on his arrival in Canada in 1994. He lived on welfare while involved in crime. But he knew his rights under the ill-conceived Supreme Court decision that all refugees are entitled to the full protection of Canadas Charter. Consequently, Ressam avoided deportation, together with some other 100,000 refugees under a similar order, and disappeared from sight. He came to public attention again in December 1999 when, thanks to an alert American border guard, he was caught with explosives in his car on the way to blow up the Los Angeles airport.
Another disastrous Supreme Court ruling is the one that provides a different legal order for Canadian Aboriginals and for the rest of Canadian citizens. This is a time bomb waiting to explode, for it is impossible to have a united nation with two different kinds of law. Some of the confrontations organized by Aboriginals have been ugly, as is the one now occurring in Caledonia, Ontario. But there is reason to fear that they are only the faint rumblings of much worse to come.
Cutting our Roots
In his final chapter Reviving Parliamentary Democracy Leishman calls for the rediscovery of the proper division between the function of Parliament and the judiciary. He thinks that legislators are not helpless but should screw up their courage and begin to use the notwithstanding clause of the Charter. After all, this clause was included as a sort of safety valve enabling legislators to assert their independence and their primacy over the courts.
Applying the notwithstanding clause is a serious matter and should never be done unless fundamental principles of the relationship between the two branches of government are at stake. This book provides weighty reasons why now is the time for lawmakers to assume their responsibility by resorting to the notwithstanding clause.
What this book makes very clear is that the choice we face as a nation is whether to honour and protect the institutions and ideas that have governed this very privileged country, or to cut our ties with the historic moral and religious heritage without which the free nations of the West are unthinkable. The choice is between acknowledging that we are subject to a standard of truth and conduct that is not of our own making, or declaring that we are the autonomous creators of our own values and institutions.
This book is must reading for all who are puzzled, yet are looking for help in making sense out of this increasingly muddled world of legislation and jurisprudence in Canada.
Leishman has performed a yeomans service by describing in detail the destructive effects of the Charter-driven court decisions on everyday life in Canada. After all, recovery begins with the right diagnosis.
Though diagnosis in itself is not sufficient, it can be, as this book surely is, a big help in clearing the fog of doublespeak that now surrounds the efforts to re-make Canada into a nation without a soul.