Last month the Supreme Court of Canada decided in the Trinity Western University case that the right to freedom of religion, entrenched in Section 2 of the Charter, can be infringed by the rights of the LGBTQ community, which rights were read into the Charter by the Supreme Court in 1995. This was the most recent example of a troubling situation that has developed since the Charter came into effect in 1982.
The Court in the Trinity case concluded that the Law Societies of British Columbia and Ontario had the right to decide on the admission policies of a private religious university in British Columbia that wanted to obtain accreditation for a law school. The law societies objected because of the university’s Covenant that, among other matters, upheld that sexual relationships be only within marriage between a man and woman. The Court concluded that the law societies were permitted to raise objections based on vague and undefined concepts of “public interest” and Charter “values”. As the two dissenting judges stated, these concepts are “entirely the product of the idiosyncrasies of the judicial mind that pronounces them to be so”. These two concepts are subjective and depend on the varied interpretation of the judges and can now be used as justification to limit constitutional rights written into the Charter.
This decision confirms that judges are making decisions that are changing the social fabric of Canadian society based on their own policy preferences. Examples of other such decisions include the legalizing of prostitution; the striking down of the abortion law; the prohibitions against physician-assisted suicide; the right to strike granted to essential services such as firemen, policemen, ambulance workers (which puts public safety at risk); legalization of drug injection sites; the redefinition, and narrowing of the interpretation of pornography; and that sex clubs for couples and single individuals meeting each other for group sex are not illegal nor indecent. There have been many other decisions as well that have profoundly changed Canadian society. Whether one agrees with any or all of these decisions is not the point. There is a much deeper and more profound aspect to these decisions. It is whether nine appointed, unaccountable judges should be making such decisions isolated from the public – the latter having no input into the formation of such public policy decisions.
The reality is that many judges are primarily well-connected lawyers, who have the political clout and contacts to secure an appointment to the Bench. They have no special or esoteric knowledge or ability to make these decisions, which are based on narrow arguments of individuals or organizations which have the financial clout to bring costly litigation. Unlike Parliament, judges do not have access to all the social facts relevant to the issues before them; they do not have the luxury of time or the facilities to adequately reflect or publically debate issues; they do not have free access to research facilities available to parliamentarians; nor do they have the powers or institutional competence to make full and public inquiries as do parliamentary committees. They are not knowledgeable about alternative policy options. Significantly, they do not have access to the practical experience and views of the public and elected representatives on issues which are increasingly complex, economically, socially and scientifically. In short, although judges are well educated and well connected, they do not necessarily have the insight, background, understanding or skill to make public policy decisions which so deeply affect the individual lives of Canadians.
There is no longer any doubt that the Supreme Court of Canada decisions are not impartial and objective, but are based not on law or precedent, but rather on the personal policy preferences of the judges. Former Chief Justice Beverley McLachlin admitted as such in the National Post (May 23, 2015) when she stated:
My job is simply to listen to what the parties have to say … to think about what’s best for Canadian society on this particular problem that’s before us, and give it my best judgment after listening to also, my eight other colleagues…
Under what authority do the nine appointed judges have the jurisdiction to determine “what’s best for Canadian society”? It is the responsibility of Parliament to do so. The Supreme Court of Canada has used the Charter as a tool to usurp the role of Parliament. It has done so by interpreting the Charter to continually broaden its jurisdiction until it is now at the apex of its power and has become the final absolute authority in Canada. This is not acceptable in a democratic nation, where the public has now been reduced to a bystander in the formation of the nation’s laws.
Crisis Created by Charter Interpretation
The judges believe their role is to be social engineers and to change society in what they believe to be in the “best interests” of society. Available documents released on the Charter reveal that Parliament never intended the courts to usurp the role of Parliament. This has created the crisis. It is necessary that restraints be placed on judges, to restrict this autocratic abuse of power. It is a certainty that the judges themselves will not willingly refrain from exercising this power.
Canadians should consider amendments to the Charter to restrain the courts in order to restore a deference to Parliament which represents the public’s perspective. This will not be easy to achieve as Pierre Trudeau, the creator of the Charter, ensured that amendments to the Charter will not be readily achievable.
Part V, S.28 of the Charter provides that an amendment to the Charter can occur if authorized by
- The Senate and House of Commons; and
- 2/3 of the provinces that have in the aggregate of at least 50% of the population.
It will be a long journey to accomplish this, but we must start somewhere. We cannot allow ourselves to be subjected to the tyranny of appointed judges. Canada has come a long way from democracy, and this must change.
July 5, 2018