Over the past few weeks, Canadian judges have been unusually busy, changing the law to suit their personal preferences. Yet there has been nary a peep of democratic protest.
Consider the ruling on Dec. 20 of the Supreme Court of Canada in Chamberlain v. Surrey School District No. 36. At issue in this case was a request by James Chamberlain, a member of the Gay and Lesbian Educators of B.C., that the public school board of Surrey, B.C. approve three books promoting families with same-sex parents – Asha’s Mums, Belinda’s Bouquet and One Dad, Two Dads, Brown Dad, Blue Dads – for classroom use in Kindergarten and Grade 1.
Following protests from many Surrey parents who objected to the books on a variety of religious grounds – Catholic, Protestant, Muslim, Sikh and Hindu — the Surrey School Board voted four to two on Sept. 24, 1997, to reject use of the three homophile books in Kindergarten and Grade 1. Chamberlain promptly appealed to the courts.
In a ruling on Dec. 16, Madam Justice Mary Saunders of the British Columbia Supreme Court maintained that by giving weight to the opinion of religious leaders, the school board had violated the requirement in section 76(1) of the School Act that: “All schools must be conducted on strictly secular and non-sectarian principles.” According to Saunders, this provision of the law “precludes a decision significantly influenced by religious considerations.”
This anti-religious interpretation of the law governing the erstwhile Protestant schools of B.C. was entirely unprecedented, but that did not concern Saunders. “This interpretation,” she insisted, “is consistent with the increasingly pluralistic nature of modern British Columbia.”
The B.C. Court of Appeal emphatically disagreed with Saunders. In a unanimous ruling written by Justice Kenneth Mackenzie, a three-judge panel of the Appeal Court upheld the traditional view that in a democracy, judges have an obligation to uphold the laws as originally intended by the elected legislators who enacted them. On this basis, Mackenzie concluded that “strictly secular” in the historical context of the Schools Act requires only that “moral positions are to be accorded standing in the public square, irrespective of whether the position flows out of a conscience that is religiously informed or not.”
But alas, this judgement did not end the matter. In a ruling on Dec. 20, Chief Justice Beverley McLachlin of the Supreme Court of Canada held that, “Religious views that deny equal recognition and respect to the members of a minority group cannot be used to exclude the concerns of the minority group.” This bizarre interpretation of the requirement of secularism in the B.C. Schools Act was no less unprecedented than Saunders’. Instead of upholding the law, McLachlin and a majority of her colleagues on the Supreme Court of Canada have changed it through unbridled interpretation.
And to compound this affront to democracy, the Supreme Court of Canada has also struck down the decision of the democratically elected Surrey School Board to ban the classroom use of three books that hold out to children in Kindergarten and Grade 1 that there is nothing unnatural or immoral about a family headed by same-sex parents.
Meanwhile, in Windsor on Jan. 2, Ontario Court Justice Douglas Phillips kicked off the new year by acquitting a 16-year-old on a charge of possessing marijuana. With this ruling, Phillips served notice that the courts will no longer uphold the law on marijuana possession unless Parliament adopts a satisfactory amendment to the law to accommodate the possession of marijuana for purported medical purposes, as demanded by the Ontario Court of Appeal.
Why do we still bother with federal, provincial and municipal elections in this country? Now that our judicial masters in the courts have usurped the law-making powers of Parliament, the provincial legislatures, municipal councils and even school boards, would it not be more honest and efficient and democratic to subject our all-powerful judges to periodic local, provincial and national elections?
