An exemplary police officer

The London Free Press
By Rory Leishman

As a rule, I do not recount my personal experiences in a column, but I am making an exception for today to relate an incident that I think deserves public attention.On Saturday afternoon, I headed off on my bicycle to our neighbourhood grocery store near the corner of Oxford and Richmond. As I was passing through the store’s parking lot, someone lurking in the shadows near a telephone booth suddenly let out a loud yowl.

Sooner or later, anyone who regularly commutes on a bicycle is bound to be shouted at in this way, usually by some facetious punk in the passenger seat of an overtaking car. It’s best just to ignore such demented behaviour. On this occasion, I rode on to the store’s bicycle stand, locked my bike and went into the store to buy some groceries.

As I came out of the store a few minutes later, I saw a police car drive into the parking lot. A young female officer emerged, put on some gloves and walked slowly toward an obviously deranged young man, who seemed to be either high on drugs or suffering from a severe mental illness.The man was dishevelled, shirtless, appeared to be in robust physical condition and was wearing pants that sagged halfway down his buttocks. As the officer approached, he shouted something incomprehensible at her and began to walk away toward an alley that runs behind the store.This situation did not look at all reassuring for the officer so I quickly unlocked my bicycle and headed off after the pair. By the time I caught up to them, the man was walking north on Richmond street with the officer calmly following about five metres behind.I saw the officer whisper into her radio and assumed she was giving directions to a backup. She then spoke out loud to the man. I, of course, was not taking notes at the time, but the gist of the conversation went something like this:Officer: “Look, I just want to talk to you.” The man glared over his shoulder and hurled abuse back at the officer. She did not respond in kind; she did not threaten to place him under arrest. She simply followed him in silence as they continued up the street.A few moments later, the officer rejoined: “You need help. I can get you to a shelter. I can make sure you are cared for.” Suddenly, the man stopped, whirled around and with a berserk expression, screamed at the officer: “I do not need your help. Go away.”The officer was unmoved. She did not flinch. She stood her ground and watched in silence as the man turned about again and resumed walking away.At this point, I wanted to let the officer know that she was not coping entirely alone with this potentially violent psychotic, but at the same time, I did not wish to interfere with her admirable attempts to calm him down. So I picked up speed on the street until I was parallel to the officer on the sidewalk, and as soon as I was sure that she had seen me, I slowed down without saying a word and resumed following a few metres behind her.
Within half a minute, a paddy wagon with lights flashing, but no siren, drove slowly and silently past me, proceeded about 20 metres up the street and stopped. A burly young officer got out and walked back toward the man, who had turned around and was again berating the first officer.Seeing that the police now had the situation well in hand, I started to accelerate away from the scene. As I was leaving, I heard the first officer say: “Thank you, sir.” I waved and headed home, thinking, “Thank God for that fine officer; and for all the exemplary officers like her.”

All too often, the lot of the police is truly not a happy one. They come in for a lot of gratuitous abuse. They daily risk their lives on our behalf. But at least they can be sure that law-abiding citizens are profoundly grateful for all the good work that they do to serve and protect us.

Past time to get serious about national security

The London Free Press
By Rory Leishman

In a statement at Toronto's Pearson International Airport on Friday, Prime Minister Stephen Harper confirmed that his government will spend more than $250-million over the next two years to improve passenger and baggage screening at airports, rail terminals, urban transit facilities and ports. "This is how the fight against terrorism will be won,” he said. “Modernizing equipment and procedures, plugging the holes, filling the gaps and thinking one step ahead of the agents of hate and terror."

Harper is right. When, though, is his government going to do something to plug one of the biggest and most dangerous gaps; namely, the tens of thousands of immigrants and refugee applicants from terrorist-exporting countries who enter Canada each year without proper screening?

Jack Hooper, deputy director of operations for the Canadian Security Intelligence Service, underlined the seriousness of this problem in testimony before the Senate Committee on Intelligence and National Defence on May 29. First, he pointed out that about 20,000 immigrants have entered Canada from the terrorist-beset Afghanistan-Pakistan region alone since 2001. He then added: “We’re in a position to vet one-tenth of those. That may be inadequate.”

David B. Harris, former chief of strategic planning for CSIS, agrees. In testimony to a subcommittee on immigration of the United States Congress on June 8, he noted that on a per capita basis, Canada takes in twice as many immigrants, and three to four times as many refugees as the United States. He warned: “Canada cannot effectively screen and integrate such numbers, and we’ve seen the proof.”

Indeed, we have. Literally dozens of Muslim terrorists have been unmasked in Canada over the past 10 years.

Given the seriousness of the ongoing terrorist threat, it’s urgently necessary to plug all the gaping holes in our national security. To this end, Harris suggests the Harper government “consider a moratorium on immigration and refugee intake until we get a handle on our policies and process for mitigating related security risks.”

While there is much to be said for this proposal, there is no need for any prolonged moratorium on the intake of all immigrants and refugees. In the interests of national security, the Harper government should focus instead on the primary threat posed by adult males among Muslims, Tamils and other nationalities and groups linked to terrorism.

The great majority of Muslims and Tamils are not terrorists, but that’s not the issue. The Harper government should urgently resolve that no person who might conceivably be sympathetic to terrorism can enter and remain in Canada without a full security screening by CSIS.

In addition, Immigration Minister Monte Solberg should undertake to bar even temporary entry into Canada by hatemongers like the British Shaykh Riyadh ul Haq. In an harangue before a rally of Muslims in Leicester, England, he alleged that “the rabbis of Israel have made their position clear for all the world to see: They regard the lives of Palestinians – Muslims and Christians alike – as less valuable than those of Jews, and thus expendable.”

Ul Haq is scheduled to serve as a keynote speaker at two major impending guidance conferences for Muslim youths in Montreal and Toronto. These are not fringe events. The roster of featured speakers also includes such prominent Canadian Muslims as Ahmad Shehab, a candidate for mayor of Toronto in 2003, and Dr. Munir El-Kassem, the Muslim chaplain at the University of Western Ontario.

Responsible leaders of the Muslim community in Canada should make sure that Jew-baiting bigots like Ul Haq are not invited to address mainstream Muslim conferences. Failing that, it’s up to the government of Canada to prevent these hatemongers from getting into the country.

In fact, the Canadian Coalition for Democracies has asked the Harper government to bar entry to Ul Haq, in particular. But Solberg has rejected the proposal on the ground: “If a visitor to Canada publicly incites hatred while here, they can be arrested and prosecuted under our Criminal Code."

That policy is preposterous. It gives Muslim extremists free reign to visit and incite their followers in Canada so long as they refrain from spewing their hatred in public.

When oh when will the Harper Conservatives and the opposition parties in Parliament finally get serious about safeguarding Canada from Islamist terrorism?

Standing up to the Court

The London Free Press
By Rory Leishman

Last week, Justice Minister Vic Toews recommended to Parliament a set of pay hikes for judges that would give Chief Justice Beverley McLachlin of the Supreme Court of Canada an immediate raise of $20,100 retroactive to April 1, 2004. In the opinion of Joe Comartin, the justice critic for the New Democratic Party, that’s not nearly enough. He fumed: “What we have here is another reflection of the contempt this government holds toward our judiciary.”

The mind boggles. Not so long ago the socialists of the NDP subscribed to the Marxian precept: “From each according to his ability, to each according to his needs.” Now they berate a Conservative cabinet minister for suggesting that the Chief Justice should be content with a 7.25-per-cent pay hike that will give her an annual income of $298,500.

The New Democrats are not alone in calling for heftier pay hikes of judges. The previous Liberal government accepted the recommendations in a May 2004 report by the independent Judicial Compensation and Benefits Commission that called for an immediate salary increase of 10.2 per cent for federally appointed judges. That proposal would give McLachlin a retroactive pay hike of $30,000.

Now the NDP insists that the Harper government should likewise endorse the commission’s recommendations. Toews disagrees. Given that federally appointed judges already have their salaries permanently indexed by law to inflation, he thinks that McLachlin and her colleagues on the Supreme Court of Canada should be content with an additional retroactive pay hike of 7.25 per cent.

In support of this proposal, Toews points out that even at the current rate of pay, there has been no lack of highly qualified applicants for vacancies in the federally appointed courts. And he contends that the commission’s recommendation of a 10.2-per-cent increase in judicial pay on top of inflation indexing is not “reasonable and generally proportional” to all the other economic pressures and legitimate fiscal demands upon the Harper government.

Underlying this dispute is disagreement over who should have ultimate responsibility for determining judicial pay. Toews has good reason to insist that it’s up to elected representatives of the people in Parliament inasmuch as Section 100 of the Constitution of Canada plainly states: “The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts … shall be fixed and provided by the Parliament of Canada.”

Despite this explicit provision of the Constitution, the Supreme Court of Canada held in the 1997 PEI Judges Reference case that the government of Canada must establish an independent commission on judicial pay. The court also warned: “if the executive or the legislature chooses to depart from (the commission’s recommendations), it has to justify its decision -- if need be, in a court of law.”

With this decision, the unelected judges on the Supreme Court of Canada declared, in effect, that they have a right to determine their own pay. In support of this unprecedented assertion, the majority could cite nothing but the “underlying, unwritten, and organizing principles found in the preamble to the Constitution Act, 1867.”

In a stinging dissent in this case, former Justice Gerald La Forest contended that the Court has no authority to subordinate the express provisions of the Constitution to some unwritten principles lurking in the preamble. The express provisions of the Constitution are the Constitution, he insisted: “To assert otherwise is to subvert the democratic foundation of judicial review.”

La Forest is right. In conformity with the separation of legislative and judicial powers, the Supreme Court of Canada should respect the authority of Parliament under section 100 of the Constitution to determine the salaries, allowances and pensions of all federally appointed judges.
Moreover, in fulfilling this legislative responsibility, Parliament should stick with the reasonable increases in judicial pay proposed by Toews. If McLachlin and other judicial activists on the Supreme Court of Canada are not content with his generous offer of an additional $20,100 and $18,600, respectively, per year, they should quit.

In this way, Prime Minister Stephen Harper and Toews would have an opportunity to come up with some eminently qualified replacements who would respect the democratic foundation of judicial review, by upholding the plain language of the Constitution as originally understood.

Perversion of Human Rights

Catholic Insight
By Rory Leishman

In a remarkable ruling on Maundy Thursday, a three-judge panel of the Saskatchewan Court of Appeal unanimously quashed the rulings of a Saskatchewan human rights board of inquiry which found that a Regina man had violated the province’s human rights code, by drawing public attention to Biblical teaching on the sinfulness of sodomy.

The man in question, Hugh Owens, is a Regina prison guard and Evangelical Protestant. His troubles with the human-rights thought police stem from an advertisement he placed in the Saskatchewan Star Phoenix that listed four Bible passages -- Romans 1, Leviticus 18:22, Leviticus 20:13, and 1 Corinthians 6:9-19 -- together with a picture of two stick men holding hands and superimposed with a circle and slash -- the universal symbol for something forbidden.

Acting on a complaint by three homosexual activists, the human rights board of inquiry ruled that “the circle and slash combined with the passages of the Bible … can objectively be seen as exposing homosexuals to hatred or ridicule” contrary to section 14 1(b) of the Saskatchewan Human Rights Code. To atone for this offence, the board ordered The StarPhoenix and Owens to pay the complainants $1,500 each in damages and to promise that they would never again publish such an advertisement. The publisher of The StarPhoenix meekly complied. Owens appealed the ruling, and lost again in the Saskatchewan Court of Queen’s Bench.

Luckily for Owens, he has now been vindicated by the Court of Appeal. In reasons for the Court, Mr. Justice Robert Richards pointed out that an objective observer would know that the passages cited by Owens are “self-evidently part of a larger work, the Bible.” Richards dryly added: “One need not be a Biblical scholar, or even a Christian, to know that the Bible as a whole is … the source of messages involving themes of love, tolerance and forgiveness.”

On this basis, Richards held that the publication of Owens’s advertisement did not offend the ban on hateful publications in the Saskatchewan Human Rights Code. But if the province’s Human Rights Commission were to appeal this judgment to the Supreme Court of Canada, would Owens win again? That, to say the least, is doubtful.

Ian Hunter, emeritus professor of law at the University of Western Ontario, has observed that the ostensible guarantee of freedom of religion in section 2 of the Charter “has been interpreted by the Supreme Court since the landmark decision in Big M Drug Mart [1985] to mean freedom from religion.” Correspondingly, in Egan [1995], the Supreme Court defied the manifest will of Parliament and the provincial legislatures by reading equality rights for homosexuals into section 15 of the Charter.

Following these precedents, lower courts and human rights tribunals have repeatedly censored Christians for publicly affirming the sinfulness of sodomy on the ground that the equality rights for homosexuals in section 15 trump the rights of all Canadians to freedom of conscience, religion, opinion, expression and association in section 2.

Homosexuals, of course, are not the only favoured minority of human rights commissions and the courts. In Calgary, an Imam has persuaded the Alberta Human Rights Commission to undertake an investigation of Ezra Levant, the publisher of The Western Standard, for allegedly violating the equality rights of Muslims, by republishing “hateful cartoons” of the Prophet Muhammad.

Who might be the next victim of Canada’s human-rights thought police? No one knows. All Canadians are vulnerable. Theoretically, even a Muslim could get charged for saying or publishing something offensive to homosexuals.

The Canadian Charter of Rights and Freedoms and the expansive human rights codes that were enacted in the 1980s were supposed to safeguard and enhance the rights and freedoms of Canadians. Instead, judicial activists on the Supreme Court of Canada have transformed these codes and the Charter into veritable instruments of oppression.

While three enlightened judges on the Saskatchewan Court of Appeal have given Owens a rare reprieve, the rest of us should beware: No one can be safe in a country where a mayor who refuses to issue a gay pride proclamation or a publisher who reproduces a cartoon that some Muslims find offensive could end up in jail as a prisoner of conscience.

A Harper majority government could yield major gains for the pro-life movement

The Interim
By Rory Leishman

So far, Canada’s new Conservative government has done precious little to promote the sanctity of human life, but pro-lifers should not give up on the Conservative Party. There is good reason to hope for major pro-life gains from the Harper Conservatives after the next federal election.

Consider what Prime Minister Stephen Harper has already accomplished. Thanks mainly to his leadership, the formerly hapless Conservatives are now in power, while the once seemingly invincible Liberals are in disarray.

Since the election, Harper’s overriding aim has been to win the confidence of the Canadian people for his government. To this end, he has promoted an equitable settlement of the softwood-lumber dispute with the United States and authorized Finance Minister Jim Flaherty to present a moderate budget that honours the Conservatives’ commitments to cut the GST from seven- to six-per-cent and to introduce a Universal Child Care Benefit that will provide all families with $100 per month for every child under age six.This strategy of moderation is working. According to a series of recent opinion polls, the Harper Conservatives now enjoy a commanding lead in nationwide support.

At the beginning of May, the Montreal daily La Presse published a CROP poll indicating that the Conservatives have even taken over the lead in Quebec. Other reputable polls in this same province have put the Conservatives behind the Bloc Quebecois but well ahead of the Liberals.Altogether, these polls spell disaster for the Liberals. If they lose what remains of their base in Quebec, the Conservatives will likely win a majority in the next federal election, even if the Liberals and New Democrats retain their stranglehold on urban seats in Ontario.

During the last election campaign, Harper undertook to broaden the support of the Conservative Party, by promising that his government would not support any legislation on abortion. He said: “I will use whatever influence I have to keep that off of the agenda, and I don't see any likelihood of that in the next Parliament."

Harper might well have foreseen that pro-lifers would pick up some additional seats in the last election, but not enough to constitute a majority. Regardless, there is indeed no likelihood that any back bench legislation to curb abortion will pass in the current Parliament.

However, with the pro-choice Liberals in a state of collapse, pro-lifers are well poised to win a solid majority of seats in the next Parliament. Harper, then, could no longer block bills to curb abortion even if he wanted to. Willy-nilly, he would have to uphold the official policy of the Conservative Party that: “On issues of moral conscience, such as abortion, the definition of marriage and euthanasia, the party acknowledges the diversity of deeply held personal convictions among individual party members and the right of Members of Parliament to adopt positions in consultation with their constituents and to vote freely.”

Until the last election, Harper consistently supported this policy. In the 1990s, he helped Preston Manning unite the Reform Party around a similar commitment to free MPs from the obligation to follow party discipline on controversial issues of morality like abortion and euthanasia.The next federal election could come as early as next spring. In anticipation of this contest, pro-lifers should start now to make an all-out effort to get more pro-life and pro-family candidates nominated and elected. With majority support in Parliament, pro-life MPs could finally make some dramatic breakthroughs in reaffirming the sanctity of human life in Canadian law and policy.

It’s not inconceivable that Harper, himself, could take the lead in promoting pro-life and pro-family legislation. Unlike his immoral Liberal predecessors who disgraced themselves by championing both abortion on demand and same-sex marriage, he has steadfastly upheld the traditional legal definition of marriage and resolutely refused to pander to the feminist proponents of uninhibited abortion.

Moreover, Harper is an astute political strategist. As prime minister, he has surrounded himself with several key, pro-life colleagues. There is reason to hope, and better reason to pray, that in conjunction with them, he is simply biding his time until his government can proceed with the support of a majority of Canadians to enact legislation to reaffirm the natural family and curb the abortion licence.

Supreme Contempt for Democracy and the Rule of Law

Notes for an address to the Civitas National Conference
Ottawa, Ontario
6 May 2006
By Rory Leishman

For this session, we have been asked to ponder the role of courts and judges in modern democracies. I submit that the answer is straightforward: The proper role of courts and judges in any genuine democracy, ancient or modern, is to uphold the law, not to change the law.

What, though, has the Supreme Court of Canada done? In case after crucial case over the past 25 years, the judicial activists who have taken over control of the Court have legislated from the bench. And in so doing, they have demonstrated their supreme contempt for both democracy and the rule of law.

Chief Justice Beverley McLachlin and other likeminded judicial activists resent such charges. In an extraordinary obiter dictum in Vriend v. Alberta, 1998 SCC, Mr. Justice Frank Iacobucci denounced the Court’s critics. He lamented:

It seems that hardly a day goes by without some comment or criticism to the effect that, under the Charter, courts are wrongfully usurping the role of the legislatures. I believe this allegation misunderstands what took place and what was intended when our country adopted the Charter in 1981-82. When the Charter was introduced, Canada went, in the words of former Chief Justice Brian Dickson, from a system of parliamentary supremacy to constitutional supremacy.

Note that Iacobucci invoked the authority of a former chief justice as authority for his suggestion that the Charter supplanted parliamentary supremacy with constitutional supremacy. He did not, and could not, cite any supporting evidence from the words of Prime Minister Pierre Trudeau or of any of the other federal or provincial leaders who debated and approved the Charter.

Robert Hawkins, President of the University of Regina, is an authority on the legislative history of the Charter. In a jointly written paper entitled "Democracy, Judging and Bertha Wilson," he and his co-author, Robert Martin, emeritus professor of law at the University of Western Ontario, reviewed the stated purposes of legislators in enacting the Charter. Hawkins and Martin concluded:

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.

Regardless, judicial activists on the Supreme Court of Canada have seized the legislative torch on the pretence of upholding the Charter. In Egan v. Canada, 1995 SCC, they read sexual orientation into the equality rights provisions of section 15 of the Charter, despite the fact that the Joint Committee of the Senate and the House of Commons on the Constitution had voted 22 to two to exclude sexual orientation from the enumerated grounds in section 15.[1] Then, in Vriend, the Supreme Court of Canada cited its illegitimate ruling in Egan as authority for reading a ban on discrimination on the basis of sexual orientation into the Alberta Human Rights Act in express defiance of the repeated opposition of the Alberta Legislature.

Most liberals applauded the Egan and Vriend rulings. They were pleased when the Supreme Court of Canada struck down the law on abortion in R. v Morgentaler, 1988 SCC, and they were delighted when the Court directed in M. v. H., 1999 SCC that Parliament and the provincial legislatures must amend the traditional, legal definition of spouse in literally hundreds of federal and provincial laws to include same-sex couples. But most of these same liberals were dismayed by the ruling last spring in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, that imposed two-tiered medicare on Quebec.

Proponents of democracy and the rule of law -- be they liberals, conservatives or socialists -- should be more consistent: Whether they like or dislike the outcome of judicial activism in a particular case, they should insist that judges have no right whatsoever to usurp legislative powers, by changing established principles of the law and the Constitution through judicial interpretation.

In a speech to the Canadian Club of Toronto entitled "Judging, Politics, and Why They Must Be Kept Separate,” Chief Justice McLachlin contended that those who accuse the Supreme Court of Canada of usurping legislative powers misunderstand what judges do. She said:

The reality comes down to this: Parliament and the legislatures are the supreme arbitrators of the social course of the nation, subject only to the constraints imposed by the constitution and its traditions … The aim of the judicial role … is to interpret the laws that our common law tradition and the legislators have put in place.[2]

Is that right? If all judges truly aim to uphold the laws that our common law traditions and the legislators have put in place, then it must be said that McLachlin and her like-minded colleagues are in urgent need of a judicial eye examination. Just a few days prior to McLachlin’s Canadian Club speech, a three-judge panel of the Ontario Court of Appeal unanimously declared in Halpern et al. v. Attorney General of Canada et al., 2003 OCA:

We reformulate the common law definition of marriage as 'the voluntary union for life of two persons to the exclusion of all others.'

With this ruling, the Ontario Court of Appeal brazenly repudiated the law on marriage that our common law traditions and the legislators of Canada had put in place. In the Reference re Same-Sex Marriage, 2004 SCC 79, McLachlin and her colleagues on the Supreme Court of Canada did the same: They unanimously repudiated the traditional definition of marriage enshrined in both the common law and section 91(26) of the Constitution. In response to Senator Anne Cools and others who had argued that the Court should uphold the Constitution as enacted and originally understood, the Court said such “frozen-concepts” reasoning

runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.

Here we come to the nub of the dispute: McLachlin and other like-minded, judicial activists regard the Constitution of Canada as a living tree that they, the judges, can change by progressive interpretation in any way that they see fit to accommodate and address their understanding of the realities of modern life. Sir William Blackstone held a decidedly different view. In his magisterial Commentaries on the Laws of England, he insisted that in the case of statutes, the rule for judicial interpretation must not be the will of the judge but the will of the legislator. He said:

The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made.[3]

In Federalist No. 78, Alexander Hamilton likewise affirmed that the judicial power is not superior to the legislative power under the Constitution of the United States. Rather, both are subordinate to the will of the people. Hamilton explained:

where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.

Judicial activists disagree with Blackstone and Hamilton. They have arrogated to themselves the right to substitute their own will for the will of the people as enshrined in the laws and the Constitution. And in defence of this high handed practice, Chief Justice McLachlin argues that majority rule unbridled by the courts

offers no protection against the tyranny of the majority.[4]

What can be said for such judicial hubris? Judicial activists like McLachlin subscribe to the authoritarian view that unelected judges are better qualified than elected legislators not only to interpret and uphold the laws, but also to enact and amend laws in relation to minority rights. There might be some justification for this viewpoint if judges were uniquely qualified to discern the truth about the multifarious ramifications of abstract rights. But that is obviously not the case. Judicial activists on the Supreme Court of Canada, no less than their counterparts in the United States, have repeatedly demonstrated that they cannot agree among themselves on the application of rights to particular issues such as search warrants, voting rights for prisoners, pornography laws and assisted suicide. In the chaotic 1988 Morgentaler ruling by the Supreme Court of Canada, the seven judges who heard the case split no fewer than four ways. Like the rest of us, judges often can and do differ in good faith over the nature of rights and their specific applications. How, then, do judges on the Supreme Court of Canada resolve these disputes? By majority vote, of course.

Jeremy Waldron is a professor of Law at Columbia University and an unabashed democrat. He persuasively argues in his treatise on Law and Disagreement that the definition of rights should be settled by a majority vote among elected representatives of the people in the legislative branch of government, [5] not by “a nine man junta clad in [scarlet] robes and surrounded by law clerks.”[6]

Judges in any democracy have a duty to respect the separation of legislative and judicial powers. They should uphold the law as contained in valid precedents, statute laws and the Constitution. They should make only marginal adjustments, at most, to accommodate the law to changing social and economic circumstances. Thus, in the 1932 Radio Reference, the Judicial Committee of the Privy Council awarded jurisdiction over radio transmissions to Parliament on the basis of the analogous authority over telegraphs and other interprovincial ‘undertakings’ that is conferred on Parliament in s. 92(10)(a) of the 1867 Constitution of Canada Act. In this way, the court applied the original understanding of the Constitution to the changed circumstances occasioned by the invention of the radio.

In contrast, judicial activists like McLachlin have no compunction about making radical changes to common law rules, statute laws and the Constitution. And in doing so, they routinely also defy their own precedents. In the judgment last December in R. v. Labaye, 2005 SCC 80, McLachlin obliterated the law on indecency in the Criminal Code. In a scathing dissent, Justices Michel Bastarache and Louis Lebel pointed out that the majority was:

departing from the case law of this Court and proposing a new approach to indecency that is, in our view, neither desirable nor workable. It constitutes an unwarranted break with the most important principles of our past decisions regarding indecency.

Note the implications of this charge. In the classic formulation of A. V. Dicey, the rule of law means

the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power.[7]

In Labaye, McLachlin proceeded with the support of a majority of her colleagues to overturn the regular law on indecency and in a singular act of arbitrary power, to legalize group sex in a public place. In this way, the judicial activists on the Supreme Court of Canada not only violated democracy but also transgressed the rule of law.

What can be done to curb these arrant judges? Invocation of the notwithstanding clause of the Constitution is an obvious remedy, although it applies only to section two and sections seven to 15 of the Charter. The Labaye ruling was not based on any section of the Charter: Chief Justice McLachlin and the majority of her colleagues presumed to change the law entirely on their own authority. However, in all such cases, Parliament has another option: It retains full authority under the Constitution to summon judicial activists before the bar of Parliament and to hold them to account for their naked exercise of raw judicial power.

But alas, the elected representatives of the people of Canada in Parliament and the provincial legislatures show no disposition to defend their authority from judicial attack. The Harper Conservatives, like their Liberal and Conservative predecessors, have renounced virtually all use of even the notwithstanding clause. Who can blame them? Most Canadians have lost the will to govern themselves. They are so mesmerized by the Charter and overawed by the courts that they are content to have our elected legislators surrender their lawful democratic powers to an elite of self-appointed judicial lawmakers.

What we need in Canada is a democratic leader with the insight and spirit of Abraham Lincoln. In response to the Dred Scott ruling that struck down a federal law to protect fugitive slaves, Lincoln did not just throw up his hands in despair on the nonsensical ground that the Constitution is whatever the Supreme Court says it is. Instead, in his first inaugural address, he defended democracy from judicial abuse, declaring:

The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers.

By Lincoln’s standard, we, Canadians, have ceased to be our own rulers. In defending democracy, Lincoln did not advance any complex constitutional arguments. Instead, in words that Canadian ought seriously to ponder, he simply asked:

Why should there not be a patient confidence in the ultimate justice of the people? Is there any better or equal hope in the world?

(Rory Leishman is the author of Against Judicial Activism: The Decline of Freedom and Democracy in Canada (McGill-Queen’s University Press: 2006)

Footnotes:
[1] See Minutes of the Proceedings and Evidence of the Special Joint Committee of the Senate and the House of Commons on the Constitution. Issue 48, First Session of the Thirty-Second Parliament, 1980-81, 29 January 1981.
[2] For the text of this speech, see Beverley McLachlin, "The Judiciary's Distinctive Role in our Constitutional Democracy," Policy Options, September 2003.
[3] Sir William Blackstone, Commentaries on the Laws of England (Chicago: University of Chicago Press 1979), 59.
[4] McLachlin, ”The Judiciary's Distinctive Role.”
5] Jeremy Waldron, Law and Disagreement (Oxford: Clarendon Press, 1999), 15.
[6] Waldron in an unpublished speech.
[7] A. V. Dicey, Introduction to the Law of the Constitution (Indianapolis: Liberty Fund, 1982), 120.

Liberals back the war on terror

The London Free Press
By Rory Leishman

Speaking the Commons last week, Liberal defence critic Ujjal Dosanjh noted that Canadians are divided over Canada’s mission to Afghanistan. “They are clearly divided right down the middle,” he said. “They are looking for leadership from this chamber and from the minister, from the Prime Minister, and from all of us.”

An irresponsible opposition would try to exploit this division by reflexively opposing the government. The Liberals, to their credit, have resisted the temptation. Under the leadership of former defence minister Bill Graham, they maintain that the Canadian Armed Forces are making a vital contribution to Canada’s national security by combating the Taliban terrorists in Afghanistan.

Thus, Dosanjh lauded the brave Canadian soldiers who have been killed or grievously wounded in combat in recent weeks. He said: “Mothers and fathers, sisters and brothers, have received the awful news that they dread most. Canadians have looked to us, their elected representatives, for reassurance that the mission is worth the loss.”

Dosanj gave that assurance. Standing by the decision of the previous Liberal government to initiate a stepped-up combat role for our Armed Forces in Afghanistan, he avowed: “We believed then and we believe now that destroying root and branch the agents and infrastructure of supply and training that made Afghanistan into a safe haven for international terrorism is in Canada's vital national interest.”

“Moreover,” Dosanjh added, “we believe that stabilizing, reconstructing and democratizing failing or failed states such as Afghanistan is the primary organizing principle for Canada's future foreign military operations.”

For the Liberals, that’s quite a turnaround. Under the feckless leadership of Jean Chretien, the Liberal government of Canada refused to support the United States-led coalition that is dedicated to reconstructing, stabilizing and democratizing the failed state of Iraq.

As for the New Democrats, they remain stuck in a puerile anti-American mode. They have yet to grasp that Canada has a vital role to play in the war against Islamist terrorism.

In last week’s debate, New Democrat leader Jack Layton reiterated the outdated NDP party line that “Canada’s role in the world and our reputation around the world rests on our reputation as a peacekeeping nation.” He charged the United States Bush administration with pursuing a foreign policy based upon fear engendered by the September 11 attack. That attack that killed nearly 3,000 people, including 24 Canadians. Layton admonished: “Canada must not succumb to the indulgence of fear over hope.”

In response, Defence Minister Gordon O’Connor asked Layton point blank if he “basically supports our effort in Afghanistan or not.” Layton did not provide a straight answer. He resorted instead to a cheap, diversionary debating trick, accusing O’Connor of implying that people who question the Afghan mission are deficient in “support for our service personnel who are risking their lives.”

Like Layton, New Democrat defence critic Dawn Black also stopped just short of explicitly repudiating Canada’s Afghan mission. Nonetheless, she tipped her hand by asking: “How does one build peace and diplomacy on the one hand when one is in a war fighting, or in counter-insurgency mode? We know that many of the people in the peace movement in Canada and ordinary Canadians share these concerns.”

Black should have paid closer attention to the earlier speech by Dosanjh. He recalled that in committing an army task force of about 1,000 personnel to the terrorist-infected Kandahar region of southern Afghanistan, he and his liberal colleagues in the previous government were aware that they were conferring no easy task on the Canadian armed forces. Dosanjh said: “We knew the enemy was determined and that casualties were a virtual certainty.”

He added: “We also knew that the mission marked a shift from the traditional Canadian role of peacekeeping. However, traditional peacekeeping in the post-cold war and the post-9/11 world has changed to include humanitarian, security and reconstruction dimensions. Reconstruction,” he emphasized, “is not possible without security.”

Dosanjh did not indulge in fear over hope. He told the plain truth – a truth so obvious that even a New Democrat should be able to grasp it: There can be no hope of building peace in the Middle East, or safeguarding Canadians at home, until the Islamist terrorists in Afghanistan and elsewhere are defeated and destroyed.