Since the enactment of the Canadian Charter of Rights and Freedoms in 1982, Canada has degenerated into a veritable judicial dictatorship. What can be done now to reverse this trend and to revive Canada’s historic status as an exemplar of freedom, democracy and the rule of law?
No one is better qualified to address this issue than Gwendolyn Landolt, a distinguished lawyer and longstanding National Vice-President of REAL Women of Canada. Drawing upon her extensive experience as a litigator before the Supreme Court of Canada, Landolt has co-authored with Patrick Redmond and Douglas Alderson an illuminating new book From Democracy to Judicial Dictatorship in Canada: The Untold Story of the Charter of Rights.
In the 1980s, Landolt was one of the first to recognize that enactment of the Canadian Charter of Rights and Freedoms could prove disastrous for freedom and democracy in Canada. While serving as legal counsel for Campaign Life Coalition in 1981, she warned the special joint committee of Parliament drafting the Charter that: “The Supreme Court of Canada, under an entrenched Bill of Rights, will have the power to undermine the will of the people not only on abortion legislation, but on other legislation as well.”
Landolt et al note in their book that Prime Minister Pierre Trudeau, Justice Minister Jean Chretien and Barry Strayer, the senior official of the Justice Ministry Charter in charge of Charter matters, all disputed her contention. They each maintained that the precise wording of the guarantee in Section 7 that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice” would effectively limit the courts to upholding the traditional principles of procedural fairness while refraining from second guessing the wisdom of federal or provincial legislative enactments.
Referring specifically to abortion, Trudeau assured the Commons: “The Charter is absolutely neutral on this matter.” Chretien likewise insisted that under the terms of section 7 of the Charter, there will be “no constitutionally entrenched right to privacy or abortion.
Did the Supreme Court of Canada pay any heed to these, or any of the many other, clear and unmistakable indications of the intention of Parliament and the provincial legislatures to prevent the courts from invoking the Charter as a pretense for usurping legislative powers?
Not at all. Within three years after the Charter came fully into effect, the Supreme Court of Canada presumed in Morgentaler, 1988, to strike down all restrictions on abortion in the Criminal Code. Meanwhile, with one lawless ruling after another, this same overweening Court has cited the guarantee of “life, liberty and security of the person” in section 7 and the provision for equality rights in section 15 as pretenses for amending both the laws and the Constitution of Canada to legalize same-sex marriage (2004), the perpetration of physician-assisted suicide (Carter,2015), the creation of child pornography for private use (Sharpe,2001), the performance of exhibitions of group sex in a nightclub (Labaye,2005) and the operation of brothels for the convenience and protection of prostitutes (Bedford, 2013).
In open defiance of the express will of the legislators who enacted the Charter, judicial activists on the Supreme Court of Canada have effectively usurped legislative authority. Time and again over the past 40 years, our judicial dictators have imposed their ideological convictions and policy preferences, by striking down some laws, amending others and dictating policy guidelines to both Parliament and the provincial legislatures.
Under these circumstances, Landolt et alpertinently ask: “Why do we continue to have elections since the public has been cut out of the political-legislative loop? Why bother to vote and participle in a process when the MPs elected are unable to make any substantial difference?”
Why indeed? And what can elected representatives of the Canadian people do to thwart our judicial dictators?
Landolt et alpoint out that our elected representatives in Parliament and the provincial legislators retain full constitutional authority to curb judicial activists, by invoking the notwithstanding power of the Charter and amending the Constitution to make clear that judges must in all cases uphold the fundamental separation of legislative and judicial powers.
But alas, there is precious little political will among our elected legislators to use their undoubted constitutional powers to curtail Canada’s unelected judicial autocrats. Most Liberals and New Democrats are disposed to do nothing, because they agree with the so-called progressive policies imposed on the country by rogue judges. As for the Conservatives, while most oppose these policies, few have yet to grasp how Canada’s judicial activists have undermined our heritage of democracy and freedom under law.
Thus, in a recent policy statement, Conservative Party leader Andrew Scheer suggested that Canada “is built on a rock-solid foundation of enduring values, democratic institutions, the rule of law, and fundamental and universal human rights.” As a description of Canada prior to the Charter, this statement is altogether valid. But for today, it is fundamentally erroneous. With one arbitrary ruling after another over the past 40 years, the Supreme Court of Canada has not only subverted Canada’s heritage of democracy and systematically violated the rule of law, it has also transgressed the enduring principles of Judeo-Christian morality that used to sustain Canadian democracy and undermined the human rights and fundamental freedoms of Canadians. Today, our courts can no longer be relied upon to uphold even the inalienable right of a conscientious physician to refuse on grounds of conscience to collaborate in euthanasia, abortion or the mutilation of a patient through gender hormone therapy and sex-reassignment surgery.
Of course, Canada is not alone in having succumbed to judicial autocracy. In the United States, the process got underway 60 years ago. To combat this menace to freedom and democracy, the late, great, justices Antonin Scalia and Robert Bork joined in 1982 with a group of law students at Yale, Harvard and the University of Chicago in founding The Federalist Society, a non-governmental, educational organization that provides lawyers, law students and the general public with a sound understanding of the traditional principles of democracy, judicial restraint and the rule of law.
Today, five of the nine judges on the Supreme Court of the United States are current or former members of The Federalist Society. Soon, these principled Supreme Court judges might overturn the lawless 1973 judgment in Roe v. Wade that arbitrarily struck down every state law restricting abortion.
Citing the success of The Federalist Society in the United States, Landolt et alcall for the creation of a similar, privately funded Institute for Responsible Government in Canada to bring together the finest legal minds “to defend, strengthen, and promote the principles of responsible government, individual liberty, freedoms of thought, expression, and association, and the rule of law through scholarly research, publications, debate and education.”
This is an excellent idea. And there could be no better way for such an educational institute to begin its mission than by encouraging interested lawyers, law professors, students, judges, politicians and informed members of the general public to ponder From Democracy to Judicial Dictatorship in Canadaby Landolt, Redmond and Alderson.
Rory Leishman, the national affairs columnist ofThe Interim, is author of Against Judicial Activism: The Decline of Freedom and Democracy in Canada (2006).