The Decline of Freedom and Democracy in Canada

2006-03-24T07:52:00.000-08:00

Rory Leishman

(McGill-Queen's University Press: 2006)

The Charter and expansive versions of the federal and provincial human rights codes were supposed to safeguard the human rights and fundamental freedoms of Canadians. Rory Leishman argues that this experiment in radical constitutional reform has failed because judicial activists and human rights adjudicators have viewed the Charter as a licence to impose their ideological preferences on the law rather than uphold the law as originally understood.

As indicated in the summary Introduction to the book (see below), Against Judicial Activism cites numerous cases to support this argument. For instance, with the concurrence of the British Columbia Supreme Court, the British Columbia Human Rights Tribunal defied the intent of the provincial Legislature, by reading a ban on discrimination on the ground of transsexualism into the province’s human rights code, and then, on the basis of this judicial revision of the law, ordered the Vancouver Rape Relief Society to pay $7,500 to a transsexual man in compensation for refusing to admit him into a training course for rape crisis counsellors.

In Chaoulli v. Quebec (Attorney General), 2005 SCC, 35, the Supreme Court of Canada invoked the guarantee of “life, liberty and security of the person” in section 7 of the Charter as a pretence for imposing two-tier medicare on Quebec. In a string of other Charter cases, this same Court has read expansive equality rights for homosexuals into section 15 and constricted the rights of all Canadians to the freedoms of conscience, religion and expression in section 2. Marc Cardinal Ouellet, the primate of Canada, has underlined the especial threat posed to faithful Christians by these judicial innovations in the law. Testifying before the Senate Committee of Legal and Constitutional Affairs on 13 July 2005, he said: "A kind of climate is developing in which people no longer dare say what they think. Even from the pulpit, we feel threatened if we recall the sexual morality of the church."

Leishman argues that the proclivity of judges and adjudicators to change the law from the bench compromises the rule of law; constricts the historic rights and freedoms of all Canadians; violates the separation of powers under the Constitution; and subverts the democratic process.

“This is a grand book in the best tradition of ‘a citizen speaks out.’ Charterphile or Charter-sceptic, you must take note.”
Janet Ajzenstat, political science, McMaster University

“Rory Leishman has exposed the chilling story of how Canadians are being held hostage to the ideologues who currently sit on our courts and human rights tribunals. It is a gripping tale well worth reading.”
C. Gwendolyn Landolt, national vice-president, REAL Women of Canada

“Leishman does an admirable job of bringing an issue that has agitated the academic and legal profession for many years out of the shades of the arcane into the full light of day.”
Fred Vaughan, political science, University of Guelph

RORY LEISHMAN is a former lecturer, political science, University of Western Ontario, the national affairs columnist for The London Free Press, and a frequent contributor to other newspapers and magazines including Catholic Insight, The Interim: Canada’s Life and Family Newspaper and Touchstone: A Journal of Mere Christianity.

Against Judicial Activism can be ordered from Amazon and Chapters/Indigo

Introduction to Against Judicial Activism
By Rory Leishman

NB: All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher. Excerpts are provided by McGill-Queen's University Press solely for the personal use of visitors to this web site.

Judges ought to remember, that their office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law. -- Sir Francis Bacon, “Of Judicature,” Essays (1601)

On 17 April 1982 the Canadian Charter of Rights and Freedoms was signed into law. In the meantime, Parliament and the provincial legislatures have also progressively broadened the scope of their respective human rights codes. Together, these radical innovations in the Canadian constitutional order were supposed to safeguard the human rights and fundamental freedoms of Canadians. But have these new laws succeeded? Or have they served as an excuse for human rights tribunals and the courts to undermine freedom, democracy, and the rule of law in Canada?

Prior to the Charter, Parliament and the provincial legislatures were supreme -- that is, they had virtually untrammelled authority to make, amend, and revoke laws within their respective spheres of legislative jurisdiction under the division of federal and provincial powers in the Constitution. Today, the Supreme Court of Canada reigns supreme over the legislative as well as the judicial process. Time and again over the past twenty years, unelected judges on this Court have issued guidelines on legislative policy to the democratically elected representatives of the people of Canada in what is supposed to be the legislative branch of government. On occasion, the Court has circumvented the democratic process altogether by changing the law on its own.

Consider, for example, the decision of the Supreme Court of Canada in Vriend v. Alberta, 1998 SCC. At issue in this case was a dispute between the administration of King's University College in Edmonton and Delwyn Vriend, an employee of the college who had mocked the school’s Christian code of conduct by wearing a T-shirt emblazoned with a homosexual slogan.[1] At the instigation of some indignant students, King’s College fired Vriend. He appealed the dismissal, first to the Human Rights Commission of Alberta and then to the courts. Eventually, the case ended up before the Supreme Court of Canada. In a ruling on 2 April 1998, Canada’s top court held that in dismissing Vriend for insubordinate behaviour, the college had violated the ban on discrimination on the basis of sexual orientation in the Alberta Human Rights, Citizenship, and Multiculturalism Act.

This was a remarkable ruling inasmuch as there was not, and never had been, any reference to sexual orientation in the Alberta Human Rights Act. Indeed, the Supreme Court of Canada frankly acknowledged in its judgment in Vriend that the Alberta Legislature had repeatedly refused to proceed with Opposition demands that a provision on sexual orientation be incorporated into the province's human rights legislation. Likewise, there is not now, and never has been, any mention of sexual orientation in the Canadian Charter of Rights and Freedoms. Like the Alberta Legislature, the Parliament of Canada clearly rejected proposals to include any reference to sexual orientation in the Charter when it was adopted. But has the Supreme Court of Canada paid any heed to such unmistakeable indications of the express will of elected representatives of the people in Parliament and the provincial legislatures? Not at all. First, in Egan v. Canada, 1995 SCC, the Court read sexual orientation into the equality rights provisions of section 15 of the Charter, and then, three years later in Vriend, the Court cited Egan as authority for a decision to flout the Legislature of Alberta by reading a ban on discrimination on the basis of sexual orientation into the Alberta Human Rights Act.

In M v. H., 1999 SCC, the Supreme Court of Canada followed up on Egan and Vriend by decreeing that the denial of spousal benefits to same-sex couples under the Ontario Family Law Act was inconsistent with the allegedly implicit equality rights of homosexuals in section 15 of the Charter to an extent that could not be demonstrably justified in a free and democratic society. Just five years earlier, the elected representatives of the people of Ontario had debated this same issue at the instigation of Ontario’s attorney general, Marion Boyd. On behalf of the New Democratic Party government of Premier Bob Rae, she introduced a bill that proposed to give cohabiting gay and lesbian couples essentially the same rights and responsibilities in provincial law as common law couples.[2] The proposal met with a popular outcry so intense that backbenchers among Boyd's fellow New Democrats were moved to join with the Opposition in defeating the bill. Typically, the Supreme Court of Canada has paid no heed to this clear and deliberate expression of the will of the majority of the elected representatives of the people. However, instead of abruptly amending the law as in Vriend, the Court condescended in M. v. H. to give the Ontario Legislature six months to come up with a series of amendments ensuring that the spousal benefits and obligations of cohabiting same-sex couples are equivalent to those of heterosexual, common law couples in the laws of Ontario. The Legislature promptly complied. Where Boyd failed, the Court succeeded in browbeating the elected legislators of Ontario into expediting passage of an omnibus bill that conferred spousal benefits upon same-sex couples under the Ontario Family Law Act and sixty-six other Ontario statutes. In short order, Parliament and the legislatures of every other province followed suit: They, too, meekly and promptly brought their laws into line with the discovery by the Supreme Court of Canada in M. v. H. that the Constitution of Canada mandates equal rights for homosexual and heterosexual couples in common law relationships.

In an attempt to limit the adverse impact of M. v. H. on marriage and the natural family, the Canadian Alliance proposed a resolution in the House of Commons on 8 June 1999 declaring: "It is necessary, in light of public debate around recent court decisions, to state that marriage is and should remain the union of one man and one woman to the exclusion of all others, and that Parliament will take all necessary steps within the jurisdiction of the Parliament of Canada to preserve this definition of marriage in Canada.” Prime Minister Jean Chrétien supported this Opposition resolution. And so did most of his Liberal Cabinet. In leading off debate for the government on the resolution, Justice Minister Anne McLellan avowed: "Let me state again for the record that the government has no intention of changing the definition of marriage or of legislating same sex marriages.” McLellan flatly rejected the contention of gay rights activists that homosexuals have the same right to marry as heterosexuals. She said: “I fundamentally do not believe that it is necessary to change the definition of marriage in order to accommodate the equality issues around same sex partners which now face us as Canadians.” She added: "Marriage has fundamental value and importance to Canadians and we do not believe on this side of the House that that importance and value is in any way threatened or undermined by others seeking to have their long term relationships recognized. I support the motion for maintaining the clear legal definition of marriage in Canada as the union of one man and one woman to the exclusion of all others.”[3]

With the backing of most Liberal and Progressive Conservative members of Parliament, this Canadian Alliance resolution upholding the historic definition of marriage in the common law of Canada was adopted by the overwhelming margin of 216 to 55. Eight months later, Parliament and the Chrétien government reaffirmed their support for the traditional definition of marriage in the Modernization of Benefits and Obligations Act -- the omnibus federal bill that was adopted pursuant to the M. v. H. ruling for the purpose of conferring equality rights on same-sex couples in some sixty-eight federal statutes. In an explanatory note, the federal Department of Justice explained that the changes in federal law effected by the Act "will ensure that, in keeping with the Supreme Court of Canada decision in M. v. H. (May 1999), same-sex common-law couples have the same obligations and benefits as opposite-sex common-law couples and will provide them with the same access as other Canadian couples to social benefits programs to which they have contributed.”[4] A more abject parliamentary capitulation to the legislative will of the Supreme Court of Canada is hard to imagine, yet even in this Act, Parliament made a point of reiterating in section 1.1: "For greater certainty, the amendments made by this Act do not affect the meaning of the word 'marriage,' that is, the lawful union of one man and one woman to the exclusion of all others.”

Have the appeal courts of Canada paid any heed to these repeated expressions of parliamentary support for the traditional definition of marriage? Definitely not. On 1 May 2003 the British Columbia Court of Appeal decreed in Barbeau v. British Columbia (Attorney General), 2003 BCCA 406, that the common law bar to same-sex marriage violates the equality rights of homosexuals in section 15 of the Charter. In reasons for the Court, Madame Justice Jo-Ann Prowse said that while she was disposed to reformulate the common law definition of marriage as "the lawful union of two persons to the exclusion of all others,” she had decided to suspend this remedy until 12 July 2004 “solely to give the federal and provincial governments time to review and revise legislation to bring it into accord with this decision.”

Even this small courtesy to Parliament and the provincial legislatures was too much for the Ontario Court of Appeal. On 10 June 2003 a three-judge panel led by Ontario’s chief justice, Roy McMurtry, abruptly 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.'” By this means, the Court immediately granted same-sex couples the unprecedented right to marry in Ontario. Since then, courts in Manitoba, Newfoundland, Nova Scotia, Saskatchewan, Quebec, and the Yukon have done the same: In all of these jurisdictions, activist judges have violated the common law, distorted the Constitution, and defied the express will of Parliament by writing same-sex marriage into law.

In reaction to these illegitimate rulings, Parliament could have invoked its power under the notwithstanding clause of the Constitution to enact a bill reaffirming the traditional definition of marriage. Chrétien rejected this option. He abandoned the formal commitment that he and his Liberal Cabinet colleagues had made just two years earlier to "take all necessary steps within the jurisdiction of the Parliament of Canada to preserve this [traditional] definition of marriage in Canada.” Instead, the Chrétien government capitulated to the courts. Scarcely a month after the Halpern ruling, Justice Minister Martin Cauchon introduced a bill on behalf of the government that declared: "1. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others. 2. Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs.” Then, in an extraordinary affront to the dignity of Parliament, the Chrétien government referred the bill to the Supreme Court of Canada for approval prior to passage.

Paul Martin took over as prime minister on 12 December 2003. A few weeks later, on 28 January 2004, his government put an additional question to the Supreme Court of Canada, asking if the centuries-old definition of marriage in the common law as the voluntary union for life of a man and a woman is compatible with the Constitution of Canada. In a unanimous ruling on 9 December 2004, the Court ducked this new question while advising that far from violating the Charter, the government’s draft bill on same-sex marriage flowed from the section 15 equality rights that the Court had conferred on homosexuals in the 1995 Egan judgment.

With this ruling, the Supreme Court of Canada has all but mandated the imposition of same-sex marriage. Earlier, this same Court legalized abortion on demand in R. v. Morgentaler, 1988 SCC, and came within one vote of declaring a constitutional right to assisted suicide in Rodriguez v. British Columbia (Attorney General), 1993 SCC. The Supreme Court of Canada has had no compunction about invoking the Charter as justification even for imposing amendments to government acts with major spending implications. This process began in Schachter v. Canada, 1992 SCC, when the Court extended postnatal maternity benefits under the Unemployment Insurance Act to fathers. In Eldridge v. British Columbia, 1997 SCC, the Court compelled the Government of British Columbia to introduce free sign-language interpretation in all provincial hospitals. In a unanimous judgment in Hislop et al. v. The Attorney General of Canada, 2004 OCA, the Ontario Court of Appeal amended both the Modernization of Benefits and Obligations Act and the Canada Pension Plan to make survivors’ benefits for same-sex common law couples retroactive to 17 April 17 1985 -- the date on which the equality rights provisions of the Charter came into effect. With this ruling, the Court extended survivor's benefits to about 1,500 homosexuals at an estimated cost of $80 million.[5] In Gosselin v. Quebec (Attorney General), 2002 SCC 84, the Supreme Court of Canada came within one vote of ordering the Government of Quebec to hand out extra welfare payments to young Quebecers at an estimated cost to taxpayers of $389 million plus interest.

Ultimately, of course, taxpayers must foot the bills for judicially created entitlements. But that is of no account to our unelected lawmakers in the courts. Time and again, they have ordered governments to spend money on programs that have never been approved by elected representatives of the people in the legislative branch of government. In issuing these orders, these activist judges have repeatedly violated one of the cardinal principles of democracy: no taxation without representation.

With the prominent exception of law professors Michael Mandel of Osgoode Hall Law School[6] and Robert Martin of the Faculty of Law at the University of Western Ontario,[7] the great majority of leftist law professors have joined with left-wing politicians and pundits in applauding the disposition of activist judges on the Supreme Court of Canada to read the agenda of the left into the abstract words of the Charter. However, most of these same leftist intellectuals and politicians were astounded and outraged on 9 June 2005 when the Court handed down one of its rare right-wing decisions in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, which struck down the prohibition on private health insurance in the health and hospital insurance acts of Quebec. With this ruling, the Court signalled that it is prepared to impose two-tiered health care on all Canadians. In reasons for the majority in Chaoulli, Chief Justice Beverley McLachlin and Mr Justice John Major stated: “We conclude, based on the evidence, that prohibiting [private] health insurance that would permit ordinary Canadians to access health care, in circumstances where the government is failing to deliver health care in a reasonable manner, thereby increasing the risk of complications and death, interferes with life and security of the person as protected by s. 7 of the Charter.” Section 7 of the Charter simply states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Citing this section as justification, McLachlin and Major insist that they and other activist judges on the Supreme Court of Canada have a mandate to impose two-tiered medicare on the people of Canada. Is that correct? Is this a fair reading of the original understanding of section 7?

At least three members of the Supreme Court of Canada think not. In a joint dissent in Chaoulli, Justices Ian Binnie, Morris Fish, and Louis LeBel affirm: “We cannot find in the constitutional law of Canada a ‘principle of fundamental justice’ dispositive of the problems of waiting lists in the Quebec health system. In our view, the appellants’ case does not rest on constitutional law but on their disagreement with the Quebec government on aspects of its social policy. The proper forum to determine the social policy of Quebec in this matter is the National Assembly.” Exactly. All Canadians, left and right, should agree on this point: In a genuine parliamentary democracy, political disputes over policy issues like single- versus two-tiered medicare should be resolved by elected representatives of the people, not by nine unelected and unaccountable judges.

Regardless, no matter how much judicial interpretation of the Charter has undermined the democratic process in Canada, it is commonly supposed that enactment of the Charter has at least made Canadians more secure in the enjoyment of their basic human rights and fundamental freedoms. Yet even this assumption is gravely mistaken. Time and again, human rights tribunals and the courts have invoked the Charter to abridge historic rights and fundamental freedoms of all Canadians. That goes even for members of such politically influential organizations as the Vancouver Rape Relief Society, a nationally prominent, nonprofit charitable agency that operates the oldest rape crisis centre in Canada.[8] In a ruling on 17 January 2002, the British Columbia Human Rights Tribunal found that in refusing to admit a transsexual who had undergone male-to-female sex reassignment surgery to a training program for rape crisis counsellors, Rape Relief had contravened the ban on discrimination on the basis of transsexualism that the tribunal held to be implicit in the ban on discrimination on the basis of sex in the British Columbia Human Rights Code and the Canadian Charter of Rights and Freedoms.[9] The tribunal ordered Rape Relief to atone for this judicially contrived offence by paying the transsexual complainant $7,500 as compensation for “the injury to her dignity, feelings and self-respect.”

Prior to the enactment of Canada's modern human rights codes and the Charter, such a bizarre legal dispute could not have occurred. Under the venerable rules of the common law, freedom of association was so firmly guaranteed that an organization like Rape Relief had an unimpeachable right in law to accept or reject anyone -- homosexual, heterosexual, bisexual, or transsexual -- as a voluntary rape crisis counsellor. As it is, thanks to judicial interpretation of the Charter and the British Columbia Human Rights Code, members of Rape Relief have been embroiled for the better part of the past ten years in an expensive legal battle, appealing to the British Columbia Human Rights Tribunal and the courts to uphold the right of a feminist organization to choose only women born as women to serve as rape crisis counsellors.

Rape Relief’s plight is not unusual. In a similar case, the Quebec Human Rights Tribunal dealt with a disagreement between Maison des Jeunes, a youth centre in Montreal, and a sexually troubled, male employee who worked with street youths.[10] The conflict started when the male employee showed up for work dressed as a female, pronounced himself a male-to-female transsexual, and requested that his supervisor treat him as a female employee. The management of Maison des Jeunes initially acquiesced to this unusual request, but after the man's contract expired, the agency refused to offer him a renewal. He complained to the Commission des droits de la personne et des droits de la jeunesse (Quebec Human Rights Commission), which readily took up the case. Together, M.L. and the commission asked the Quebec Human Rights Tribunal to declare that in refusing to rehire M.L., Maison des Jeunes had violated the ban on discrimination on the basis of “sex” in Quebec’s Charter of Human Rights and Freedoms. In an unprecedented ruling on 2 July 1998, the tribunal agreed with this argument. Tribunal president Michèle Rivet specifically held that Maison des Jeunes had discriminated against M.L. on the basis of transsexualism. There is no mention of transsexualism in the Charter, but this did not inhibit Rivet. She deemed that "transsexualism or the process of unifying disparate sexual criteria is included in the term 'sex' in s. 10. of the Quebec Charter.”

It is noteworthy that in bringing this case before the tribunal, the commission designated the complainant M.L. with the male pronoun “il.” Regardless, Rivet referred to M.L. throughout her ruling as a female. She explained: “As M.L. presents herself [sic] as a woman, she will be designated as such throughout this judgment.”[11] In short, Rivet took the view that since the man dressed as a woman and considered himself a woman, he was for the purposes of the law a woman, although he was biologically a male and had not undergone sex reassignment surgery. By this reasoning, she resolved to order the youth centre to pay M.L. $1,750 in compensation for his lost wages and another $4,000 in damages for violating what Rivet called “her [sic] right to respect for her [sic] dignity.”[12]

Over the past twenty years, one freedom-stifling ruling by a human rights tribunal has quickly led to another. Just a few months after the decision of the Quebec Human Rights Commission in M.L. v. Maison des Jeunes, the British Columbia Human Rights Tribunal ordered a nightclub in Victoria to pay $2,000 in damages to a cross-dressing man because a club bouncer had refused to allow him to use the women's washroom.[13] Citing Maison des Jeunes as a precedent, the British Columbia tribunal likewise held that a male-to-female transsexual who represents himself as a woman has become a woman for the purposes of human rights legislation, even if he remains physically a man. In arriving at this conclusion, the tribunal paid no heed to the contrary judgment of the Federal Court, General Division, in Canada v. Owen, 1994 FCGD. In this case, the appellant was a preoperative, male-to-female transsexual who had lived as a female for more than fifty years and had been “married” to another man during nine of those years. Nonetheless, the Court held that the appellant was not a female within the meaning of the law because he had not undergone sex reassignment surgery, and that he was therefore not entitled to spousal benefits under the Old Age Security Act. Sensible precedents like Canada v. Owen mean nothing to activist judges and human rights adjudicators. They prefer to read their own ideological preferences into the law by subjecting the plain words of the text to large, liberal, progressive, and idiosyncratic interpretations.

Avowed homosexuals have often benefited from the unprecedented decisions of Canada's human rights tribunals, but not even members of this now-privileged minority remain secure in the freedoms previously guaranteed to all Canadians by the common law. Former members of the defunct Vancouver Lesbian Connection understand this point all too well. In 1997 they ran afoul of the British Columbia Human Rights Commission for expelling from their sisterhood a man who represented himself as a preoperative male-to-female transsexual.[14] In this instance, the complainant, Susan Amy Mamela, known prior to July 1997 as Eric Friday, testified to the commission that he had developed a strong identity as a lesbian female in November 1995. The following March, he wrote a letter to the Vancouver Lesbian Connection asking for permission to join the organization as a transsexual lesbian. He signed this letter as "Eric (Susan) Friday.” At the annual general meeting of the Lesbian Connection in May 1996, the organization resolved after much discussion to open its membership to "self-identified queer, bisexual and transgendered womyn [sic].” In October 1996 Mamela duly joined the Lesbian Connection under the name "Susan Friday.” But alas for him, his membership did not last long. Five months later, he got into a heated argument with fellow members over an interview he had given to a West Coast homosexual newspaper in which he refused to describe himself as a woman on the ground that the word "woman" is a contemptible construct used by men to put down females. That stance offended the female members of the Lesbian Connection who took pride in their identification as "womyn.” They were not mollified by Mamela's explanation that he regarded himself as a lesbian, albeit not a woman. Following a bitter confrontation over his stubborn refusal to identify himself as both a lesbian and a woman, Mamela’s associates in the Lesbian Connection denounced him as "aggressive and mannish” and expelled him from their lesbian and feminist fellowship.

Mamela appealed for reinstatement to the British Columbia Human Rights Commission, accusing the Lesbian Connection of unlawfully discriminating against him on the basis of his gender identity as a female. Following several months of investigation and fruitless mediation by the commission, the matter came before the British Columbia Human Rights Tribunal. In a ruling on 8 September 1999, the tribunal held that the Lesbian Connection had indeed discriminated against Mamela on the basis of his sex, ordered the Lesbian Connection to cease discriminating against him and other self-affirming, male-to-female transsexuals, and directed the nonprofit sisterhood to pay Mamela "the sum of $3,000 in compensation for injury to her [sic] dignity, feelings and self-respect.”

The female members of the Lesbian Connection took exception to the tortured reasoning that had led the tribunal to declare that a man like Mamela qualifies in law as a woman because he self-identifies as a woman, although in all biological respects, he is, and always has been, a man. In protest, the outraged women disbanded the Lesbian Connection. As for Mamela, it seems that he has continued to struggle with his sexual identity: On 20 February 2001, the Canadian Press reported: "Susan Mamela ... has said he will not have surgery to become a woman.”[15]

In the Charter era, not even the hitherto most respectable and law-abiding of Canadians remain secure in the historic rights and freedoms formerly guaranteed by the common law and the conventions of the Canadian Constitution. Consider the ordeal of Scott Brockie.[16] He is a Toronto print-shop owner and a devout Evangelical Protestant who became the focus of a precedent-setting judicial confrontation because of his refusal on religious grounds to obey an order by the Ontario Human Rights Tribunal to print letterheads and other materials for an organization that promotes gay, lesbian, and bisexual lifestyles. In a unanimous ruling on 17 June 2002, a three-judge panel of the Ontario Superior Court of Justice ordered Brockie to comply with the tribunal's order. Brockie finally acquiesced. Had he failed to do so, he could have been consigned to jail for contempt of court.

In a similar 1997 dispute, Dianne Haskett, a lawyer and devout Christian then serving as mayor of London, Ontario, was ordered by an Ontario human rights board of inquiry to issue gay pride proclamations.[17] Like Brockie, she refused to comply as a matter of religious principle. Had the complainants in her case pressed the matter, she, too, could have been hauled before the courts and sentenced to jail for standing by her Christian convictions. Even now, the same fate awaits numerous other mayors in cities from Kelowna to Fredericton: They could all end up behind bars if they were to disobey a court order requiring them to heed the directive of a human rights tribunal to issue a gay pride proclamation, regardless of their personal moral convictions and the preferences of their constituents.

Further, the Catholic Church has been singled out for human rights attack. In an ominous development on 10 May 2002, Mr Justice Robert McKinnon of the Ontario Superior Court of Justice issued an interlocutory injunction compelling the Durham Catholic District School Board and the principal of the Monsignor John Pereyma Catholic Secondary School in Oshawa, Ontario, to allow Mark Hall, a seventeen-year-old student, to attend a Grade 12 prom with his twenty-one-year-old homosexual boyfriend as a date.[18] Auxiliary Bishop Anthony Meagher, the supervising Catholic cleric for the Oshawa area, affirmed that permitting a seventeen-year-old boy to take another male to a dance would violate the clear teaching against homosexual behaviour in the definitive Catechism of the Catholic Church. McKinnon presumed to disagree. Notwithstanding the rights conferred on the Catholic schools of Ontario in section 93 of the Constitution Act, 1867, and the ostensible guarantees of freedom of conscience and religion in section 2(a) of the Charter, he took the view that Hall had a constitutional right to attend the prom by virtue of the overriding equality rights conferred on homosexuals in section 15 of the Charter.

Meanwhile, Catholic Bishop Fred Henry of Calgary has come under investigation by the Alberta Human Rights Commission for denouncing the Martin government’s bill on same-sex marriage.[19] In a pastoral letter issued in January 2005 and in a subsequent column in the Calgary Sun, Henry wrote: "Since homosexuality, adultery, prostitution and pornography undermine the foundations of the family, the basis of society, then the State must use its coercive power to proscribe or curtail them in the interests of the common good." In a complaint filed with the Alberta Human Rights Commission, Carol Johnson of Calgary charged that Bishop Henry’s letter “is likely to expose homosexuals to hatred or contempt” contrary to section 3 of the Alberta Human Rights, Citizenship, and Multiculturalism Act. Under terms of section 22 of this Act, Marie Riddle, the director of the Alberta Human Rights Commission, could have summarily dismissed the complaint as without merit on the ground that the bishop has an undeniable right to express his views on same-sex marriage by virtue of the guarantees of both freedom of religion and freedom of the press in section 2 of the Charter as well as section 3 of the Alberta Human Rights Act. Instead, she publicly advised that it could take a year for the commission to decide whether to summon Bishop Henry before a human rights panel to answer to the complaints occasioned by his pastoral letter and newspaper column.

Given the judicial distortion of human rights in Canada, it is no longer safe for a Christian or Jew in this country even to draw attention in public to a list of Bible verses that condemn homosexual acts. Hugh Owens, a Regina prison guard, and Lyle Sinkewicz, publisher of the Saskatoon StarPhoenix, have first-hand knowledge of the danger. In 2001 a Saskatchewan human rights board of inquiry directed that they must each pay $4,500 in damages to three homosexual complainants who were offended by an advertisement that Owens had placed in the StarPhoenix, which simply cited, without quoting, a list of biblical verses condemning homosexual behaviour together with a stick-figure depiction of two hand-holding men superimposed by a circle and slash -- the universal symbol for something forbidden. Sinkewicz capitulated to the board's ruling despite having testified to his high regard for freedom of the press.[20] Owens appealed to the Saskatchewan Court of Queen’s Bench and lost. He is now taking the case to the Saskatchewan Court of Appeal. If he should end up losing on all appeals, he, too, will face a stark choice: Either pay $4,500 in damages to the homosexuals who objected to his advertisement or go to jail.

The prospect of such a travesty of justice speaks volumes about the sorry state of freedom in Canada. Despite the ostensible guarantees of human rights and fundamental freedoms in the Charter, everyone, from the trendiest gays and lesbians to the most traditional Christians and Jews, could end up in jail for refusing to comply with the freedom-stifling rulings of a human rights tribunal.

What has gone wrong? Is Canada no longer a parliamentary democracy? Are Canadians not still protected by the rule of law? Are not judges and human rights commissioners obligated to uphold the clearly defined legal rules that historically sustained freedom of thought, belief, opinion, and expression as well as all the other basic human rights and fundamental freedoms of Canadians?

Not so long ago, the answer to such questions was indisputable: Our heritage of democracy and freedom under law in Canada was safe from attack. Today, our historic rights and freedoms are in grave jeopardy. Yet most Canadians are oblivious to the danger.

Chief Justice Antonio Lamer of the Supreme Court of Canada has been one of the foremost champions of the Canadian Charter of Rights and Freedoms. In a public tribute to Prime Minister Trudeau, he said: "In my opinion, Pierre Elliott Trudeau did not begin and he did not end the protection of rights and freedoms, because that task is never-ending. But he made an enormous contribution to the implantation of what I call a culture of rights and freedoms of the person in Canada. And I hope that someone will follow up on that, because a charter is not everything. One can do whatever one wants with it. Look what the former Soviet Union did with its charter.”[21]

Lamer has a good point: The 1936 Constitution of the Soviet Socialist Republics included an expansive charter of human rights and fundamental freedoms. In article 124 this Soviet document purported to ensure all citizens "freedom of conscience" and "freedom of religious worship,” while article 125 affirmed "freedom of speech,” "freedom of the press," and "freedom of assembly, including the holdings of mass meetings.” Fifty years ago, most intellectuals in western Europe and North America thought that this Stalinist document meant what it said.[22] Today, every authority on the Soviet Union understands that Stalin's 1936 Constitution was a fraud. All the guarantees of human rights and fundamental freedoms in this document were meaningless. Under the cover of a sham constitution, the arch tyrant, Joseph Stalin, conducted a lawless reign of terror that repudiated every basic human right. He proved what Lamer has stated: One can do whatever one wants with a charter. Indeed, a charter can mask the subversion of the very human rights and fundamental freedoms it is supposed to affirm.

George Orwell was one of the first to see through the pretensions of the Soviet Constitution. In Nineteen Eighty-Four he projected that a Stalin-like, socialist Big Brother would seize power in England and construct an enormous ministry of truth emblazoned with the slogans: "WAR IS PEACE, FREEDOM IS SLAVERY, IGNORANCE IS STRENGTH.”[23] Today, Canadians are living in a quasi-Orwellian nightmare, where freedom often means slavery and ignorance strengthens activist judges. Most Canadians have no conception of how the Supreme Court of Canada has taken advantage of the Canadian Charter of Rights and Freedoms to wrest legislative supremacy from Parliament. Most Canadians do not understand how the Court has subjected the Charter to Orwellian double-think. They believe that the Charter means what it clearly says. They have yet to grasp that, time and again, the Supreme Court of Canada has twisted the original meaning of the Charter out of all recognition.

Take, for example, the purported guarantee of freedom of conscience and religion in section 2(a) of the Charter. Under the guise of upholding this guarantee, the Supreme Court of Canada contrived in R. v. Big M Drug Mart, 1985 SCC, to strike down the longstanding Sunday-closing provisions in the federal Lord's Day Act. There is no evidence to indicate that the legislators who adopted the Charter believed that there was any conflict between the Lord's Day Act and the guarantee of freedom of religion as stated in section 2(a) of the Charter. Canada’s activist judges came to this novel conclusion entirely on their own.

R. v. Big M Drug Mart was the first of a series of like-minded Charter rulings. In Three Faces of the Law: A Christian Perspective, Ian Hunter, emeritus professor of law at the University of Western Ontario, trenchantly observes: "Freedom of religion has been interpreted by the Supreme Court since the landmark decision in Big M Drug Mart to mean freedom from religion.”[24] Far from upholding freedom of religion and the traditional principles of Judeo-Christian morality as enshrined in judicial precedents, the laws, and the Constitution of Canada, the Supreme Court of Canada has suppressed public expressions of Christianity and imposed unprecedented new laws based on new values that the Court finds appealing. This is why the mayor of a Canadian municipality who refuses as a matter of religious conviction to issue gay pride proclamations is now liable to be consigned by the courts to an indefinite term in jail as a prisoner of conscience.

If such a dire prospect seems far-fetched, consider the precedent-setting case of John Ross Taylor, a former leader of the racist Western Guard Party. He was ordered by a Canadian human rights tribunal in 1979 to cease communicating a series of tape-recorded anti-Semitic opinions by telephone. In the words of Professor Hunter, "Taylor, who was 69 years old, refused to alter either his opinions or his practices. He was then convicted of contempt of court and served one year in jail, thereby becoming Canada’s first prisoner of conscience to be jailed for daring to contradict the orthodoxy of human rights.”[25]

Until the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms came into effect, Taylor was free to express his repellent ideas because the laws and the constitutional conventions of Canada granted wide scope to freedom of expression. Within limits clearly defined by law relating to such matters as libel, sedition, fraud, and pornography, most Canadian legislators and judges in the pre-Charter era firmly upheld freedom of expression, including the freedom of all Canadians to express even vile and unpopular opinions on race, gender, and other controversial subjects without interference by the state. It used to be commonplace within the legal profession in Canada to endorse the maxim "I disapprove of everything you say but will defend to the death your right to say it.” In marked contrast, most judges, lawyers, and law professors are now less concerned about safeguarding freedom of speech than about preventing Canadians from expressing controversial views.

Until about twenty years ago, it would have been inconceivable for a Canadian court to order a private women's club to admit a male as a member. Likewise, it would have been unimaginable that the Supreme Court of Canada might incarcerate a conscientious Christian solely for the peaceful expression of his or her religious convictions. Today, the once inconceivable in our courts has become commonplace. Linda Gibbons is all too aware of this turn-around. She is a peaceful, diminutive grandmother of four, who, despite the ostensible guarantee of freedom of expression in the Charter, has been repeatedly jailed as a result of a court order obtained in 1994 by Ontario’s attorney general, Marion Boyd, that prohibits picketing within fifty feet of several designated abortion clinics.[26] Alan Borovoy, general counsel of the Canadian Civil Liberties Association, has expressed dismay that a government of self-styled progressive New Democrats like Boyd would resort to such "an anti-liberal device.”[27] In an aptly entitled book, The New Anti-Liberals, Borovoy notes: "The terms of the government's proposed injunction were so broad that they could arguably have prohibited even silent, peaceful, information picketing within easy view of the abortion clinics. A restriction against physical obstruction is one thing; a ban on informational picketing is another thing entirely.”[28]

When Boyd obtained the picketing injunction on behalf of Rae’s NDP government, Charles Harnick, speaking for the Official Opposition, denounced the measure as an attack on freedom of speech. Yet after taking over from Boyd as attorney general of Ontario in Premier Mike Harris’s Progressive Conservative government, Harnick did nothing to get the injunction withdrawn.[29] The infamous court order still remains in effect under the Liberal government of Premier Dalton McGuinty.

Gibbons once had an abortion.[30] She is eager to protect vulnerable young women from making the same grievous error. To this end, she has insisted upon maintaining a peaceful, prayerful, and nonobstructive prolife witness immediately outside Toronto’s Scott Street abortion clinic in Toronto in violation of Boyd’s freedom-stifling court order. Time and again, Gibbons has been arrested, charged, convicted, and incarcerated. As punishment for her "silent, peaceful, information picketing,” she has spent close to four years in an Ontario jail as a prolife prisoner of conscience.[31]

It bears repeating that the distortion of human rights and fundamental freedoms in the Charter era does not relate just to gays, lesbians, prolifers, and traditional Christians. This revolution in the Canadian legal order threatens all Canadians. While theologically orthodox Catholics, Protestants, and Jews are the prime targets for oppression, judges and human rights commissioners have shown that they are prepared to use their enormous powers to harass and coerce any vulnerable minority that defies the orthodoxy of human rights as conceived by these same human rights commissioners and activist judges. Many of the hard-won freedoms of Canadians are fast disappearing. Complacent Canadians should beware. They should remember what happened to complacent Germans in the 1930s. At that time, one of the few Germans who stood up for genuine human rights and fundamental freedoms was Martin Niemoeller, a Lutheran pastor and heroic former First World War U-boat captain. For his defiance of Hitler, Niemoeller was consigned to the Dachau concentration camp. After the war, he is said to have recalled: "In Germany they came first for the Communists, and I didn't speak up because I wasn't a Communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics, and I didn't speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up.”[32]

<1>Introduction

[1] For the facts relating to this case, see the judgment of the Supreme Court of Canada in Vriend v. Alberta, 1998 SCC. The T-shirt provocation is reported in "Courts Reject Traditional Values: Vriend and Rosenberg,” REALity, May/June 1998.

[2] See Rae, From Protest to Power, 251-3.

[3] See House of Commons Debates, 8 June 1999.

[4] Department of Justice, "Backgrounder.”

[5] See "Gay Widows Win Pension Case,” Canadian Press, 26 November 2004.

[6] See Mandel, The Charter of Rights.

[7] See Martin, The Most Dangerous Branch.

[8] See Vancouver Rape Relief Society, "Vancouver Rape Relief Seeks BC Supreme Court Appeal.”

[9] See Nixon v. Rape Relief Society, 2002 BCHRT 1.

[10] See M.L. v. Maison des Jeunes, 1998 QHRT.

[11] Ibid.

[12] Following Rivet’s precedent, judges and human rights adjudicators now invariably refer to preoperative male-to-female transsexuals as females. To avoid confusion, I will refer to a male-to-female transsexual as a male unless he has completed sex reassignment surgery as a female.

[13] See Sheridan v. Sanctuary Investments Ltd. dba "B.J.'s Lounge," 1999 BCHRT.

[14] See Mamela v. Vancouver Lesbian Connection, 1999 BCHRT.

[15] See "Transsexual ‘Always a Woman’ Lawyer Says," Vancouver Sun, 23 February 2001.

[16] See Ontario Human Rights Commission v. Scott Brockie, 2002 OSCJDC.

[17] See Hudler v. London (City), 1997 OBI.

[18] For a perceptive analysis of this case, see Cauchi, “A Catholic Lawyer.”

[19] See “Calgary Bishop Defiant about Gay Marriage Views,” Canadian Press, 31 March 2005.

[20] See “Official: Bible 'Exposes Homosexuals to Hatred,'” WorldNetDaily, 22 June 2001.

[21] "Charte des droits et libértés," Le Devoir, 2 October 2000, my translation from the French: "Pour moi, Pierre Elliott Trudeau n'a pas commencé, il n'a pas terminé, parce que ce n'est jamais fini la protection des droits et libertés de la personne, mais il a fait une contribution énorme dans l'implantation de ce que j'appelle une culture des droits et libertés de la personne au Canada. Et j'espère qu'il y a quelqu'un là-bas pour prendre sa relève là-dessus. Parce qu'une charte, ce n'est pas tout. On peut faire ce qu'on en veut. Regardez ce que l'ex-URSS a fait de la sienne.”

[22] See Johnson, A History of the Modern, 275-7.

[23] Orwell, Nineteen Eighty-Four, 5-6.

[24] Hunter, Three Faces of the Law, 74.

[25] Hunter, "Liberty and Equality,” 8. Professor Hunter wryly adds: "It should be (but is not) superfluous to point out to human rights commissions that one may defend John Ross Taylor’s right to free speech without endorsing his views.”

[26] For an account of this injunction and its impact, see A.G. Ontario v. Dieleman, 1994 OCJ.

[27] Borovoy, The New Anti-Liberals, 141.

[28] Ibid.

[29] See "A Test of Free Speech?" Ottawa Citizen, 31 January 1999.

[30] For information on Linda Gibbons, see Truscott, Alone.

[31] See "Linda Gibbons: Prisoner of Conscience,” http://www.lifesite.net/gibbons/index.html.

[32] Bartlett, Familiar Quotations, 824.

Against Judicial Activism:

The Decline of Freedom and Democracy in Canada