A new low for judicial depravity

The Interim
March, 2006
By Rory Leishman

In a judgment handed down just four days before Christmas, Chief Justice Beverley McLachlin declared on behalf of the Supreme Court of Canada that Canadians have a constitutional right to engage in group sex in a nightclub. The ruling was unprecedented. It outraged the public. And it ran clearly contrary to section 210(1) of the Criminal Code, which prohibits the practice of acts of indecency in a common bawdy house.

How can McLachlin justify such an offensive and lawless decision? What makes her think that the Supreme Court of Canada has any right to invent legal rights that not only offend most Canadians but have no basis in the laws or the Constitution of Canada?

In an address to law students at the University of Victoria in Wellington, New Zealand, early in December, McLachlin claimed: "The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion." With this statement, she demonstrated that she has no appreciation for the fundamental separation of legislative and judicial powers under the Constitution. Instead of parliamentary democracy and the rule of law, she and her like-minded colleagues on the Supreme Court of Canada prefer the arbitrary rule of unelected judges.

In a genuine constitutional democracy, judges do not presume to legislate from the bench. Rather, they restrain themselves to upholding the laws and the Constitution as enacted and originally understood by elected representatives of the people in the legislative branch of government, subject to the rule that in the event of a conflict between a statute law and the Constitution, restrained judges give precedence to the Constitution.

The peculiar notion that judges have a right to invoke unwritten constitutional norms as a pretence for rewriting the laws and the Constitution was entirely unknown in Canadian law prior to the 1998 ruling of the Supreme Court of Canada in the Quebec Secession Reference. The central issue in this case was straightforward: Is there any provision in the Constitution of Canada that confers on Quebec the right to separate unilaterally?

The Court stated the obvious at the outset of its judgment: Quebec has no right under the Constitution of Canada to separate. That settled the only legal issue in dispute and should have ended the case. Instead, the Court went on to serve up the gratuitous political opinion that “a clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize.”

In support of this unprecedented intrusion into the legislative process, the Court cited four unwritten constitutional norms: namely, “federalism; democracy; constitutionalism and the rule of law; and respect for minorities.” In a trenchant commentary in 1999, Prof. Greg Craven, a leading Australian authority on constitutional law, pointed out that these four norms “are so inherently vague that they conceivably could be applied in the future so as to mean virtually anything ... In effect, the potential of the secession reference is to equip the Canadian Supreme Court with four vast subject matters of constitutional morality upon which it conceivably could legislate with much the same freedom as the Canadian parliament legislating upon a subject matter within its competence.”

Prescient as he was, Craven could hardly have anticipated that the Supreme Court of Canada would soon find a right to group sex hidden in the norms of the Constitution. What’s next? Judicially sanctioned prostitution, incest, infanticide and euthanasia?

No such outrage is inconceivable. Our judicial masters on the Supreme Court of Canada scorn “the supremacy of God” acknowledged in the preamble to the Constitution. They repudiate the principles of Judeo-Christian morality enshrined in the common law and the statute laws of Canada. And they have no respect even for the original understanding of the fundamental provisions of the Canadian Charter of Rights and Freedoms.

In short, led by McLachlin, the judicial activists on the Supreme Court of Canada have become a law unto themselves. What will it finally take for some leader in Parliament to summon up the resolve to save us from these arrogant, immoral and lawless judges?