Supremacy of Parliament replaced with supremacy of the Charter
Canadians were recently inundated with media propaganda celebrating 20 years since the implementation of Pierre Trudeau’s Charter of Rights and Freedoms. The mostly liberal media reported poll results indicating that 82 per cent of Canadians feel the Charter has been good for Canada. The Charter has been a feel-good exercise since its inception with few Canadians questioning how it could add to the already-substantial rights and freedoms that Canadians enjoyed before it.
Unfortunately, the implications of the radical change to Canadian democracy and society that the deceptively named Charter has brought about is still not understood by ordinary Canadians. Parliament has in many ways been replaced by an unelected, unaccountable court elite that has naturally used the power to change and make law that the Charter granted them.
In addition, Canadian governments have frequently by-passed legislatures and used special-interest groups, funded by government programs such as the Court Challenges Program, to impose radical social change via Charter legal challenges.
Alan Borovoy, of the Canadian Civil Liberties Association, stated about the Charter, “You had the striking down of school prayer and religious instruction in the public schools in Ontario.”
He continued, “We had been fighting that program for years in the political arena and had made some progress, but it was a judicial decision that finally knocked it out of the curriculum.
Those cases never even went to the Supreme Court of Canada, those decisions were made by the Ontario Court of Appeal.”
The abortion law was struck down on Charter arguments, gay rights have been drastically advanced via Charter arguments and a general climate of legal, political and social intolerance for traditional religious and moral principles has been growing thanks to manipulations of the charter.
By Eli SchusterSpeaking in late March to an audience of over 400 people at the University of Toronto for the 7th annual Barbara Frum lecture, former U.S. solicitor-general Robert Bork said the basis of Canada’s 1867 Confederation – the establishment of responsible government – is slowly being eroded by an un-elected, unaccountable “intellectual class” of liberal judges.
Best known for his nomination to the U.S. Supreme Court in 1987 by President Reagan, Bork was rejected by the Senate after an intense lobbying campaign by liberal interest groups. Senator Edward Kennedy even claimed that Bork’s America would be a scary place where women would be forced into back-alleys for abortions and racial segregation would still exist. According to William Safire’s Political Dictionary, to “Bork” means to “attack viciously a candidate or appointee, especially by misrepresentation in the media.”
Bork said that Canada has experienced a “slow-moving, genteel coup d’etat” because “judges have taken power not entrusted to them.” While Bork praised the Canadian Supreme Court for being more restrained and sensible than its U.S. counterpart in areas of religion and free speech, he sharply criticized it for engaging in judicial activism on other occasions involving abortion and gay rights. “Courts can’t legislate what legislatures refused to legislate,” said Bork in reference to the 1998 Vriend v. Alberta case which dealt with a homosexual teacher who was fired from a private religious school. The Supreme Court unanimously ruled that Alberta had acted unconstitutionally by not including homosexuals in its Individual Rights Protection Act of groups protected from discrimination. Although the federal and provincial governments refused to give sexual orientation protected status when the Charter of Rights and Freedoms was drafted two decades ago, Justice Claire L’Heureux-Dube wrote after the Vriend decision that Canada’s courts are taking the lead in protecting same-sex relationships and such actions reflect the values of ordinary Canadians.
The former Supreme Court nominee said he has no problem with either the U.S. Bill of Rights or Canada’s Charter, but he wishes to see each document interpreted as it was originally written. He added that the real threat of judicial activism in Canada, the U.S. and Israel today comes from the political left, rather than the right. “There’s no example in the United States in the 20th century of a judge getting on to the Supreme Court and moving right. There are many examples of judges getting on to the Supreme Court and moving to the left,” said Bork. With the courts firmly in the hands of a liberal “new class,” even extremely popular social conservative governments might not be able to restrict access to abortion or repeal benefits given to same-sex relationships.
Bork’s speech was adapted from his latest book, From Coercing Virtue: the Worldwide Rule of Judges. In it, Bork argued that: “American law has been badly deformed by the irrebuttable presumption of unswerving rationality embedded in Justice Oliver Wendell Holmes’ deadly metaphor of the ‘marketplace of ideas,'” as “much expression that American courts protect as contributing to self-fulfillment, or radical individualism contributes to the coarsening of American culture and does not qualify as seeking truth or participating in political and social decision-making.” Bork was astounded, for example, that an American court decided that a newspaper had a right that was superior to state privacy law, that allowed it to publish the name of a rape victim, “a fact of no conceivable public interest.”
From Coercing Virtue also warned that judges are increasingly basing decisions on academic literature that is often written by left-wing professors, on subjects on which judges have no formal training. “Judges ought to be wary of the literature produced by writers from the generally leftish academic world,” wrote Bork. “Given the virulence of ‘political correctness’ in much of the academic world, and in much of the New Class, it may be that the criminal law will come to be used to stifle legitimate discussion of group and cultural differences.”