The spectre of an activist Supreme Court of Canada that supersedes the jurisdictions of the governments of Canada – not surprisingly, in a left-liberal direction – has reared its head once again with the court’s recent ruling in the Delwin Vriend case.
Groups and individuals across Canada are sounding the alarm after the court unanimously decided April 2 that legal protection must be afforded to Alberta’s homosexuals. It said sexual orientation must be “read in,” or assumed to be a part of, Alberta’s Individual’s Rights Protection Act as a prohibited ground of discrimination – even though the law does not specifically say so.
The decision follows several controversies that have dogged the Supreme Court in recent years, including Chief Justice Antonio Lamer’s recent admission that public opinion plays a role in arriving at important legal decisions, such as the 1988 Morgentaler verdict.
The Supreme Court in the most recent case went so far as to defend its power to supersede democratically elected legislatures. “Where the interests of a minority have been denied consideration, especially where that group has been the target of prejudice and discrimination, I believe that judicial intervention is warranted to correct a democratic process that has acted improperly,” wrote Justice Frank Iacobucci.
“We should recall it was the deliberate choice of our provincial and federal legislatures in adopting the Charter to assign an interpretive role to the courts and to command them” to use the Constitution “to declare unconstitutional legislation invalid,” he added.
Line in the sand
Alberta premier Ralph Klein was indicating he would abide by the court’s decision by not invoking the Constitutional notwithstanding clause open to him. “Right or wrong, I’ve drawn my line in the sand. I’ve said personally I feel good about it, I feel comfortable, that I will accept the ruling,” he said.
Many other sectors of Canadian society weren’t as comfortable, however. Klein’s office and those of many of his MLA’s were reported to be inundated with calls urging that the notwithstanding clause be invoked.
University of Calgary political scientist Ted Morton characterized the court’s comments in the Vriend case as facile legalism. “Maybe they realize this is an unsurpassed example of judicial lawmaking and they finally are having pangs of conscience,” he said.
Morton added that the only minorities the court is prepared to protect are those favored by the social left. “Why not unborn children, why not smokers, why not gun owners? There are more restrictions on gun owners in Alberta than there are on homosexuals. There’s a political bias. This minorities game can be played left, right and centre and the court plays it right down the left lane.”
Gerry Chipeur, who represented the Evangelical Fellowship of Canada as an intervenor in the case, said the courts have gone too far in making public policy. “This was a watershed decision that did in fact see the judges cross the line from being the body that holds up a ruler against legislation and says you either measured up or you didn’t, and instead saw them pick up the chalk and saying, ‘We are going to step into the legislative process.’”
Canadian news media generally received the Supreme Court ruling with mildly suppressed glee – even though charges have flown in recent years that the press is becoming increasingly right-wing in orientation because of the influence of Conrad Black. The left-leaning Toronto Star, for one, ran a front-page headline proclaiming a “major victory” for gays.
The Conrad Black-owned (through Southam newspapers) Hamilton Spectator, meanwhile, ran two editorials proclaiming that it was “time for Alberta to fall into step with the rest of Canada” and urging Premier Klein to display “courageous, vocal leadership” by supporting the Supreme Court’s decision.
“Klein has a rare opportunity, indeed an obligation, to publicly decry and dispel the myths and stereotypes put forward by those who are bigoted and many others who are simply uninformed or misguided,” the paper said.
Need of reform
But Christian Heritage Party leader Ron Gray said the ruling was undemocratic and “unconstitutional,” and demonstrates a need for both high-court reform and a higher level of appeal.
“The preamble to the Constitution, Canada’s highest law, invokes the supremacy of God, but the court decision in Vriend ignores God’s word in a case involving a Christian school,” said Gray. “A Christian institution has the absolute right to insist on biblical standards of behavior … Will the court now open the door for polygamy and polyandry? For child marriage? For bestiality? The decision in Vriend offers no rational basis for the court to say ‘no’ to anything.”
Gray added the CHP is considering a policy the would advocate the right to appeal a Supreme Court decision to the governor-general or to the House of Commons, to provide a final level of appeal that is accountable to the electorate.
Gwen Landolt, a lawyer and national vice-president of REAL Women of Canada, said the Vriend ruling raises the question of whether the people of Canada or nine appointed, unaccountable judges are in charge of our laws.
“They (the Supreme Court) are saying they have power over something that’s not even in the law,” she said. “They’re carrying their jurisdiction to the utter limits, to the point that they have what I would call the power of an absolute monarch. Whatever they say, goes … It’s really judicial legislation.”
Landolt added the Charter of Rights is filled with vague and ill-defined expressions, which makes it ripe for the kind of liberal interpretations that the Supreme Court has been giving it. Add to that the left-liberal orientation of a number of the judges, and you get a recipe for rulings that don’t reflect the views of pro-life and pro-family Canadians.
“Every judge comes to the bench with biases and prejudices,” said Landolt. “Putting on a scarlet robe and swearing an oath of office apparently doesn’t do an iota of good. They just go and do their own thing anyway.”
Landolt said something to watch for in the near future is further court challenges over whether religious institutions have the right to determine who they can hire and whether they can stay true to their values. Such a scenario would pit Constitutional provisions on freedom of religion against provisions for freedom from discrimination on the basis of sexual orientation.
Jim Sclater, vice-president of national public policy for Vancouver-based Focus on the Family Canada, said his organization was an intervenor on behalf of the Alberta government in the Vriend case.
“We’re going to tell people they should contact the government and ask it to uphold the legislature’s primacy … We would advise carefully worded, polite letters saying, ‘We do not want to see the erosion of basic institutions of our society, including the legislature, family and marriage. We call on the government to stand up and defend that.’”
Sclater said the Vriend ruling opens the door to the redefinition of family, spouse and “everything else.”
“We would like to see the government put out a policy on what family and marriage are,” he said. Like Landolt, he was critical of the process that sees the Supreme Court taking an activist role.