The rejection of natural law in Canada’s courts

By Rory Leishman

The Interim

How do we know that abortion, euthanasia and assisted suicide are evil? For Christians and Jews who uphold the historic teachings of their faith, the answer is obvious: God has forthrightly declared, “You shall not kill.” In the light of recent discoveries in reproductive biology, it’s evident that this God-given commandment specifically forbids the deliberate killing of any innocent human being at any time from conception to natural death.

Until about 40 years ago, there was virtually unanimous agreement within Britain, Canada, the United States and other common-law countries on the evils of abortion and suicide. It was generally accepted that all human life is sacred and that every innocent human being has a right to life. “We hold these truths to be self evident,” proclaims the United States Declaration of Independence, “that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”

John Locke, the pre-eminent philosopher of democracy, was no less forthright in support for the sanctity of human life. In The Second Treatise on Government, he affirmed:

The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise Maker – all the servants of one sovereign master, sent into the world by his order, and about his business – they are his property, whose workmanship they are, made to last during his, not one another’s pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of creatures are for ours. Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.

Note that John Locke, like Thomas Jefferson and the other drafters of the United States Declaration of Independence, invoked the authority of God to uphold the sanctity of human life. Today, all arguments from divine law are out of bounds in Western societies. With regard to Canada, the Supreme Court of Canada made that clear in Tremblay v. Daigle (1989). At issue in this case was the right of a Quebec mother, Chantal Daigle, to have her baby aborted over the objections of the child’s father, Jean-Guy Tremblay. In deciding this question, all nine judges of the Supreme Court of Canada unanimously ruled that:

The Court is not required to enter the philosophical and theological debates about whether or not a foetus is a person, but, rather, to answer the legal question of whether the Quebec legislature has accorded the foetus personhood. Metaphysical arguments may be relevant but they are not the primary focus of inquiry. Nor are scientific arguments about the biological status of a foetus determinative in our inquiry. The task of properly classifying a foetus in law and in science are different pursuits. Ascribing personhood to a foetus in law is a fundamentally normative task. It results in the recognition of rights and duties – a matter which falls outside the concerns of scientific classification. In short, this Court’s task is a legal one. Decisions based upon broad social, political, moral and economic choices are more appropriately left to the legislature.

What, though, did the Quebec Legislature declare about the moral status of a baby in the womb? Section 1 of the Quebec Charter of Human Rights and Freedoms explicitly states: “Every human being has a right to life, and to personal security, inviolability and freedom.” Likewise, article 18 of the Quebec Civil Code provides that “Every human being possesses juridical personality.” On the basis of these laws, both the Quebec trial judge and Quebec Court of Appeal ruled that Daigle had no legal right to abort her baby. The Supreme Court of Canada reversed these verdicts. Regardless of the plain language of both the Quebec Charter of Human Rights and Freedoms and the Quebec Civil Code, the country’s top court unanimously ruled that Daigle had an uninhibited right to abort even a perfectly healthy, full-term baby.

In 1993, the Supreme Court of Canada dealt with the tragic case of Sue Rodriguez, a British Columbia woman afflicted with a progressive and incurable, paralytic illness, who insisted that she had a moral and legal right to assistance in committing suicide. In a dissenting opinion, former Chief Justice Antonio Lamer stated:

In my opinion, the Court should answer this question without reference to the philosophical and theological considerations fuelling the debate on the morality of suicide or euthanasia. It should consider the question before it from a legal perspective – Tremblay v. Daigle, [1989] 2 S.C.R. 530 – while keeping in mind that the Charter has established the essentially secular nature of Canadian society and the central place of freedom of conscience in the operation of our institutions.

This bold statement by Lamer is pure judicial bunkum. The Charter manifestly did not establish the central place of freedom of conscience in the operation of Canadian institutions. Long before the Charter, freedom of conscience was a central tenet of the British common law and a governing principal of Canadian democracy. But like freedom of speech, freedom of conscience has always been subject to legal constraints so that just as no one has a right to libel someone in the name of freedom of speech, so no one like Paul Bernardo has a right to commit the most atrocious crimes in the name of freedom for his twisted conscience.

In defining limits to freedom of conscience, Parliament and the courts used to be guided by the decrees of natural and divine law. Sir William Blackstone acknowledged in his magisterial Commentaries on the Laws of England that:

This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this, and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.

It was in a transparent attempt to justify the flouting of divine and natural law that Lamer stated in his reasons for judgment in Rodriguez that the Charter established the essentially secular nature of Canadian society. In legal, as distinct from sociological terms, that claim is also patently false. In the preamble to the Charter, Parliament and the provincial legislatures explicitly reaffirmed that, “Canada is founded upon principles that recognize the supremacy of God and the rule of law.” Likewise, in the 1960 Canadian Bill of Rights, Parliament formally observed that:

the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions; (and) that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law….

The perverse notion that the law and the Constitution of Canada no longer have anything to do with natural and divine law is a bald fabrication of the Supreme Court of Canada. Under the pretence of upholding the Charter, autocratic supreme court judges have routinely renounced natural law, divine law and the historic principles of the common law. They habitually defy the legislative authority of elected representatives of the people. Instead of upholding the rule of law, these dictatorial, would-be Solons of the courts have presumed to change the law and the Constitution in accordance with their personal ideologies. Thus, in the notorious 1988 Morgentaler decision, they struck down the minimal restrictions on abortion that Parliament had enacted in the Criminal Code. In Rodriguez, they came within one vote of declaring that the Charter includes an implicit right to assisted suicide. These are the kinds of barbarian outcomes one might expect from a court that has unlawfully decreed that for the purposes of the law, Canada is now an essentially secular and Godless society.