REALity August 2018                                                                                                                 Ottawa, ON

With its decision in the Trinity Western University case, the Supreme Court of Canada (SCC) took its gloves off, removing any pretense of objectivity in reaching its decision. In doing so, it exposed itself as intent on changing Canada to suit the personal outlook of the majority of judges, since they choose to ignore the law and legal precedent in reaching their conclusion. This is a clear example of raw judicial power.

The judges also exposed their indifference to the historic and proper role of the judiciary and the division of responsibilities that separate it from the executive and legislative branches of government. Instead, the Court has assumed the role of Parliament and is now determining public policy. The judges on the SCC have shown themselves to be contemptuous of the clear, fundamental rights clearly written into the Charter, by concluding that these rights can be trumped by other considerations. The judges apparently have little concern for the impact that their decisions have on the innocent hapless public, believing only that their decisions are in the “best interests” of the public.  Such elitism, such arrogance.

The Trinity Western judgment decided that administrative bodies, such as law societies, medical associations and Human Rights Tribunals etc., may infringe on the religious rights of faith-based organizations if such a decision is in the “public interest” and based on a Charter “value”. This is a ludicrous conclusion. These two, invented and undefined concepts, are totally subjective, and depend on their interpretation by the various tribunals and societies, as well as on the personal views of the judges as to their meaning. In short, religious institutions are now vulnerable to attack on the conduct of their private affairs, at the whim of others, who hold different and secular views. Observant Christians’ so-called fundamental right of religious freedom, written into S.2 of the Charter, has been whisked away by appointed, unaccountable judges, with only two dissenting judges raising reasoned objections to their preposterous conclusion.

This is not the first time the courts have changed the social fabric of Canada based on the judges’ 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, were 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 whatever into the formation of 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 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. 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.

Supreme Court’s Unjustified Assumption of Power

Under what authority do the nine justices have the jurisdiction to determine “what’s best for Canadian society”? It is the responsibility of Parliament to do so. The SCC 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 absolute authority in Canada. This is not acceptable in a democratic nation, as the public has been reduced to be an impotent bystander in the formation of the country’s laws. This was not the intent according to documents released during the Charter debate.

Who is running Canada? It is the appointed judges. This must change in order to restore democracy in Canada.