Judicial Abuse of the Charter

The Interim
By Rory Leishman
The enactment of the Canadian Charter of Rights and Freedoms in 1982 has led to a national calamity, but the fault lies not so much with the plain words of the Charter as with the arrogance of judicial activists who invoke the Charter as a pretext for arbitrarily imposing their perverse values on the laws and the Constitution of Canada.
Consider, for example, the abuse of the Charter by the Supreme Court of Canada in R. v. Morgentaler, 1988 SCC. In this disastrous case, a majority of the Court led by Chief Justice Brian Dickson struck down even the minimal restrictions on abortion that then remained in section 251 of the Criminal Code on the ground that they allegedly violated the “right to life, liberty and security of the person” as guaranteed in section 7 of the Charter.
Mr. Justice William McIntyre vigorously disagreed with this manifestly absurd judgment. In a powerful dissent joined by Mr. Justice Gerard La Forest, he wrote: “I wish to make it clear that I express no opinion on the question of whether, or upon what conditions, there should be a right for a pregnant woman to have an abortion free of legal sanction.
“Questions of public policy touching on this controversial and divisive matter must be resolved by the elected Parliament. It does not fall within the proper jurisdiction of the courts. In my view, nothing in the Canadian Charter of Rights and Freedoms gives the Court the power or duty to displace Parliament in this matter involving, as it does, general matters of public policy.”
In taking this principled stance, McIntyre and La Forest exercised judicial restraint. They upheld the separation of legislative and judicial powers under the Constitution. They acknowledged that there is nothing in the Charter that gives unelected judges the power or the duty to displace the elected Parliament in deciding upon an appropriate law on abortion or any other general matter of public policy.
Up to the mid-1970s, almost all Canadian judges habitually practised such restraint. But since then, many of Canada’s top jurists, including Dickson, have taken to following the example set by judicial activists in the United States who have no compunction about changing the laws and the Constitution to conform with their personal preferences.
Today, there is not a single practitioner of judicial restraint among the judges on the Supreme Court of Canada. They are all judicial activists. They have collectively overturned the rule of law, by showing scant regard for their own precedents let alone legislative enactments.
Restrained judges like McIntyre understand that judges have a duty to set their personal policy preferences aside for the purpose of upholding the laws and the Constitution as enacted and originally understood. In contrast, judicial activists pretend that the Charter has given the courts a mandate to treat the laws and the Constitution as a “living tree” that judges have a right to change as they see fit.
This pretence is entirely false. Robert Hawkins, President of the University of Regina, is an authority on the history of the Charter. In an article published in the McGill Law Journal that was jointly written with Robert Martin, emeritus professor of law at the University of Western Ontario, he maintains that “the legislators who entrenched the Charter in the Constitution had no intention of abandoning the doctrine of parliamentary supremacy in favour of a doctrine of aggressive judicial review. They never intended to pass the legislative torch.
“Instead, the Charter was a typically Canadian compromise, a deal struck after a very politicized negotiation in which it was decided that rights would be protected by the Constitution, but in such a way as to respect, to the greatest degree possible, the supremacy of Parliament.”
While restrained judges like McIntyre have continued to respect the supremacy of Parliament in the Charter era, Chief Justice Beverley McLachlin and other like-minded judicial activists habitually purport that the Charter gives them authority to presume on their own to change the laws and dictate public policies on everything from abortion to same-sex marriage and national security.
Yet neither Prime Minister Stephen Harper nor any provincial premier shows any disposition to resist this gross judicial usurpation of the legislative authority of Parliament and the provincial legislatures. What a pity.