The stability of Canadian life is being upended by decisions handed down by the Supreme Court of Canada. The court has used the Charter of Rights as its tool to acquire power and influence, which was never intended by parliamentarians when they legislated the Charter in 1982. As a result of leftist judicial activism, and the failure of Parliament to balance that activism, the Supreme Court has become the most powerful and influential institution in Canada.

Harmful Decisions by the Supreme Court

Decisions by the Supreme Court have profoundly changed this country and its values and this, in turn, has resulted in alienating many segments of Canada’s population.  While many of these decisions have powerful and compelling dissents, and there is evidence of a deeply divided Court, it is the majority liberal opinion that “wins out”, resulting in Canada and Canadians being the losers.

It is not possible to provide the entire list of such cases, due to space considerations. However, some decisions of judicial overreach, which have tossed out traditional values, based on long held Judaeo-Christian principles, by substituting in their place woke progressive laws, include the following:

1985 – R. v. Big M Drug Mart Ltd. – The Lord’s Day Act prohibited commercial activities on Sunday. The court overturned this legislation on the basis that it discriminated against other faiths. The Lord’s Day Act did not force anyone to denounce their faith, or require them to attend religious services on Sunday. Its only effect was that Canadians, no matter what their faith or lack of faith might be, would abstain from commercial activities on the common day of rest, as has been the long-standing practice in this country.

1988 – R. v. Morgentaler – The abortion law was struck down, based on “evidence” that had not been properly introduced into the court proceedings. Evidence had been obtained, unaccountably, without a Notice of Motion admitting it to the hearing. This evidence consisted of a report compiled by a prominent abortion activist. This evidence was not in existence at the time of the hearing, but was available three months later.  Mr. Justice William McIntyre, one of the dissenting judges in this decision, objected to the reliance by the court on such material, stating that “the court should rely only on evidence provided under oath”. Nevertheless, this biased evidence was used by the court as the reason for overturning the abortion law.

Subsequently, on February 6, 1998, Chief Justice Antonio Lamer stated, in a speech at the Faculty of Law, University of Toronto, that the abortion law had been overturned because the court believed the majority of Canadians were opposed to “abortion being a criminal offense”. This assertion indicated that the decision by the court on abortion was a reflection of the public’s views. If so, such a decision is incompatible with the requirement that judges impartially interpret the law in accordance with legal principles. It is not known how the court, if it did determine the views of Canadians on the abortion law, acquired such information.

1989 – Tremblay v. Daigle – The court held that a decision by a woman to have an abortion was to be made solely by her, and that the father of the child – whose very existence required his participation – could not participate in the decision. This conclusion was reached by the court, despite the fact that the Charter of Rights specifically provides that it applies equally to male and female persons and prohibits discrimination on the basis of sex.

1992 – R. v. Butler – The court narrowed the definition of pornography, deciding that pornography was not a moral issue, but was limited to whether it was degrading and dehumanizing to women and children or depicted sex with violence.

1995 – Egan v. Canada – A Parliamentary Committee deliberately excluded homosexuality from the Charter in a vote of 22-2. However, the court “read-in” protection for homosexuals in the Charter on the contentious basis that homosexuality was analogous to the other protected rights in the Charter.

1997 – Winnipeg Child and Family services v. G. (D.F.) – A woman’s addiction to glue sniffing resulted in two of her children being born with abnormalities and they were removed from her care. She was placed into treatment to protect a child in a subsequent pregnancy. The court held that there was no legal status for the child in the womb and, therefore, the mother could not be detained for treatment without her consent, even though her conduct may have caused irreparable damage to her subsequently born child.

1999 – Attorney-General (Ontario) v. M and H – The court held that same-sex partners were entitled to the same  benefits under Ontario’s Family Law Act as opposite sex married couples. This decision provided the basis for legalizing same sex marriage.

1999 – R. v. Gladue – The court held that, in sentencing aboriginal offenders under the (new) 1995 sentencing principles of the Criminal Code, lower courts must apply a different standard to aboriginal offenders than that applied to others because of the unfortunate historic circumstances experienced by them. The purpose of the 1995 Criminal Code amendment was to decrease the large number of aboriginal inmates incarcerated in Canadian prisons. (See detailed article on this decision, published in the February 2023 REALity “The Family makes a Difference for EVERYONE”)

2001 – R. v. Sharpe – The law prohibiting child pornography was rewritten by the court to provide two exceptions to its application. The exceptions were that child pornography was permissible if it was created only for personal use or if it depicted sexual activity between adolescents who were close in age and for their use only.

2002 – Chamberlain v. Surrey School District No. 36 – The Surrey School Board in BC prohibited the use of homosexual books in kindergarten and grade one. The court held that the Board was required to accept such material because the BC School Act required “tolerance and diversity”. There was no such provision in the BC legislation. It is noteworthy that the Surrey community was ethnically and culturally diverse, including large populations of Sikhs, Muslims, Hindus, Catholics, and evangelical Christians, whose members had vigorously opposed the use of these books in the schools.

2005 – R. v. Labaye – The court legalized sex clubs, the sole purpose of which was to provide strangers with the opportunity to engage in anonymous sex. The court concluded that these sex clubs were not indecent and also changed the legal determination of indecency under Canadian law.

2011 – PHS Community Services Society v. Canada (AG) – The court overruled the decision of the federal Minister of Health that prohibited supervised drug injection sites. This decision resulted in addicts legally consuming drugs, obtained from drug traffickers, on government financed sites. This decision has led to the increased number of deaths by drug overdose.

2013 – Canada (AG) v. Bedford – The court struck down all the prostitution laws, and gave the government one year to enact new legislation consistent with “Charter values”. The catastrophic decision was remedied by the Harper Government which introduced legislation that took an alternative approach to prostitution.

2015 – Carter v. Canada (Attorney General) -The court legalized the killing, under certain conditions, of patients by physicians, by way of lethal injections. This decision was later expanded by the courts and the Liberal government to allow for the destruction of human life for other than medical reasons, such as homelessness, disabilities, poverty, and frailty of age. (See a detailed discussion of this decision included in this issue of REALity “The Blunder of the Supreme Court in Legalizing Physician Assisted Suicide”)

2015 – Saskatchewan Federation of Labour v. Saskatchewan – court held that a right to strike (that was not included as a “right” in the 1982 Charter) also included the right to strike for essential service workers, such as police, firemen, border security officers, air traffic controllers, emergency health providers, and ambulance workers, etc. This decision created a threat to public safety.

2018 – Law Society of British Colombia v. Trinity Western University – in this case Trinity Western University located at Langley BC wanted to open a Faculty of Law. The university required all students to sign a covenant to agree to moral practices including abstinence prior to marriage defined as a union between a man and woman. The court held this as discrimination against homosexual couples. It previously included homosexual rights in the Charter as a “constitutional right” and now held that this “right” had priority over the fundamental right to religion, which was a part of the written Charter in 1982.

How the Judges Changed the Legal System to Increase their Power

Prior to the Charter, a judge’s role was to interpret the laws as passed by Parliament. In essence, the elected Member of Parliament, deriving legitimacy from the electorate and representing the Canadian public, passed the laws and the courts interpreted them. This all changed with the Charter, which shifted power to appointed, unaccountable judges giving them the opportunity to make decisions on public policy formerly determined by Parliament. Such decisions have not necessarily been based on the law or established legal principles, but rather, on the judges’ preferred values and perspectives.

The courts have done this by interpreting the vague wording in the Charter to give themselves wide authority, and also by a number of their decisions, such as Schachter v. Canada in 1992 in which the Court concluded that it had the authority to “write in” or “delete” words and expressions in legislation despite the fact that such deletion or addition changed the meaning and purpose of the legislation. Simply put, under the Charter, judges are no longer confined to their adjudicative role, but are now inventing new rights based on their own progressive ideology.

Judicial Arrogance

Judicial arrogance has led judges to believe that, by nature of their political appointment to the courts, they somehow have acquired a superior ability to determine what is in the “best interests” of society. This is apparent in statements made by the two most recent Chief Justices. Former Chief Justice Beverley McLachlin 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”. Why did Chief Justice McLachlin and her colleagues believe they can decide what is in the “best interest of the public”? That is not their role, but is the responsibility of Parliament. Further, the current Chief Justice, Richard Wagner, agreed with McLachlin and stated that he was proud that the Supreme Court of Canada was “the most progressive in the world”. His responsibility, however, is not to create progressive laws, but to impartially and fairly interpret the laws passed by Parliament.

Judges are Incompetent to Determine Public Policy

The reality is that judges are not qualified to make public policy decisions as they have no greater insight than the public, including politicians, when it comes to debating the important moral and social issues of the day. Further, it is a fact that judges are increasingly appointed not because of their expertise and competence in the law, but for their political leanings and connections.

The appointments made by Justin Trudeau to the courts are based on financial contributions to the Liberal party and the political perspective of the candidates rather than legal merit. His recent appointment to the Supreme Court of Michelle O’Bonsawin is an example of this approach. Her appointment was based on gender, ethnic background (aboriginal), and the ability to speak French, rather than on legal merit. This is evidenced by the inadequacy of her written material, including her application for consideration for this judicial appointment.

Why Judges Lack the Ability to Determine Public Policy

Judges have no special or inscrutable knowledge or ability to make decisions on public policy.  The Charter cases judges hear are based on the narrow arguments of the litigants, which all too frequently are based on the wishful-thinking and the agenda of individuals or organizations which have the financial clout to bring such costly litigation forward.  Judges are limited by the fact that, unlike Parliament, they do not have access to all the social facts relevant to the issue before them; they do not have the luxury of time or the facilities to adequately reflect on or publicly 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.  Judges also lack knowledge about alternative policy options, and 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 have the background, understanding or competence to make public policy decisions.

Concerns Raised by Supreme Court Decisions

Concerns have been raised about these Supreme Court decisions, not just by conservatives (who are understandably outraged by them) but also by some thoughtful left-of-centre Canadians who are concerned about the implications of this practice. There are of course, many other left-of-centre progressives, including a great many politicians, who are delighted with this practice since it creates laws favourable to their perspective without the hassle of democracy that requires debate, public input, and a vote in Parliament.

The solution to this problem, much to the distaste to the progressives, is the application of the Notwithstanding Clause (Section 33) in the Charter (See the article below “Why Progressives Detest the Notwithstanding Clause”)