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The Supreme Court



October 19, 2007 | Daniel Kanis

By Doug Schouten

Recently, while at a meeting with a newly-elected Member of Parliament, a member of the Langley ARPA group asked what the MP proposed to do about the current lack of abortion legislation in Canada. His answer was rather surprising. He contended that the courts have effectively taken this aspect of social policy out of the hands of our legislative bodies. The MP thought that since the issue of abortion is so divisive in Parliament, and since the only way to resolve the issue to the satisfaction of the pro-life movement is to invoke the Section 33 ‘notwithstanding clause’ (I’ll explain this clause later), the only way to effect positive change in this matter is to influence the culture of Canada outside of the strictly political circles. I would tend to agree.

This article will aim to highlight the interference of the Supreme Court in the policy decisions of Canada using example cases such as Morgantaler v. the Queen, Big M Drug Mart v. the Queen (Lord’s Day Act), and, more recently, the same-sex marriage ‘dialogue’ between the Court and Parliament. I will show that this judicial activism is not required by the Canadian Charter of Rights and Freedoms (although the Supreme Court has often tried to legitimate its interference by arguing that it is). I will explain a possible philosophical basis for this interference, and reveal the perilous flaws in this underlying philosophy. Finally, since ARPA is an association for political action and not a Reformed political think-tank, I shall propose some possible avenues for future involvement that may mitigate the effects of judicial indiscretion (and besides, I’m hardly qualified to write a paper for any think-tank).

Prior to 1988, Section 251 of the Canadian Criminal Code (the laws that define what is or isn’t legal in Canada) defined some stringent conditions on obtaining an abortion. On January 28, 1988, five out of seven Supreme Court justices determined that there was a conflict between the procedures mandated by Section 251 and the Canadian Charter of Rights and Freedoms, thereby nullifying the entire section and leaving it to Parliament to resolve this conflict. Following months of indecision, the Mulroney Conservative government proposed several abortion laws to the House, all of which were defeated by partisan votes. (Ironically, the most favored bill, which was defeated by a margin of 118-105, enforced stricter limits on abortions than had the previous legislation.) Finally, in May 1990 the House passed Bill C-43; but this was subsequently defeated in Senate in February 1991. Therefore, because of the divisive nature of the issue, and due to the imposition of the Supreme Court in its ruling, the current status quo of ‘no-law’ was enforced even though the majority of Parliament and of Canadian citizens obviously did not approve of this policy void.

In Big M Drug Mart v. the Queen (1985), Big M Drug Mart said that the law prohibiting Sunday shopping, the Lord’s Day Act, was in conflict with the Charter of Rights section 2(a) declaration of ‘freedom of religion’. The Supreme Court found in favour of Big M Drug Mart and declared that the Lord’s Day Act placed an unconstitutional burden on Canadians who were not Christians by demanding the observance of religious days. Therefore, according to the Supreme Court justices, no such law could be legitimately enforced.

More recently, various lower courts as well as the Supreme Court, have determined that the definition of marriage as being limited to ‘one man and one woman, to the exclusion of all others’ is inherently discriminatory to homosexuals and therefore conflict with the Charter (although the Supreme Court failed to rule decisively on this point). The courts have left Parliament to investigate amendments to the current legislation and to present them to the Supreme Court for constitutional approval. Failure to do so by Parliament would nullify existing marriage laws and thus allow for de facto same-sex marriages. Of course, the conditions set by the Supreme Court would almost certainly require the inclusion of same-sex unions in any amendments, in which case the entire dialogue process is moot and the Supreme Court has again forced a policy decision over Parliament.

In these decisions and in many others, the rejected legislation existed before the introduction of the Charter of Rights and Freedoms and therefore existed (often with Supreme Court approval) under the British North America Act (BNA). The BNA, which was the Canadian constitution between 1867 and 1982, enforced a constitution similar ‘in principle to that of Britain’ and thereby included protection for most of the rights which are expressly sanctioned in the Charter. Therefore, as others have pointed out, it is reasonable to conclude that the Charter introduced no radically new rights, and that the rulings which undid decisions (or at least traditions) made prior to 1982 were instead a consequence of the new powers afforded to the judiciary. In short, the Charter was written to protect the assumed set of rights that had existed prior to its inception, and therefore could not by itself allow for a radical modification of these rights or even an introduction of new ones. Whatever is left seems to be plain judicial activism: the courts must have used their powers of constitutional referencing to enact their own social policy ideals.

In their defense, the courts have used two main arguments to try and distance themselves from such accusations: (i) original intent and traditional understanding and (ii) purposive analysis. Under (i), the judges on the Supreme Court have stated that the Charter’s vague and general statements should be interpreted in terms of the framers’ original intent when the Charter was drafted. However, this argument does not hold water because of the reasoning mentioned above: traditional understanding is much more likely to act as a brake on policy changes and does not explain the great revolutions in social policy promulgated by the courts. Traditional understanding maintains the notion that the Charter’s aim is to preserve pre-existing rights for protection against future democratic majorities, and does not explain the modification of existing rights or the construction of new rights. As noted by Knopff, the Court has also been very strategic by using the traditional understanding argument only when it serves the purpose of its policy goals, but ignoring it when it impedes advancing the ideals of the Court (as in the same-sex marriage cases). For instance, when the Charter was drafted, the framers clearly decided that the Charter would remain silent on the issue of abortion (Chretien himself stated this). The intent was to have the matter decided in the legislative bodies of Canada, as was noted by the dissenting judges in Morgantaler. However, all of the five judges who struck down Section 251 completely ignored original intent with respect to abortion in their rulings. Yet, not one year later, in the landmark Daigle case, the Supreme Court argued that the Charter would almost certainly have included a clause defending the rights of unborn children if this had been the intent of the legislature when drafting the Charter (i.e. here original intent is inferred, and is deemed important). Knopff says “in effect, the majority in Daigle used the interpretive methods of the minority in Morgantaler”. The Supreme Court apparently wants to have it both ways when speaking about original intent!

Purposive analysis is the procedure by which the Court attempts to determine the underlying purposes of the Charter wording. Thus, the court has argued, by understanding the most general intent of the framers in drafting the Charter, it can be adapted to new situations not originally foreseen. Now the fact that the Supreme Court has employed this method in defense of itself against accusations of judicial activism seems rather strange, since the interpretation of the Charter’s purpose is completely up to the discretion of the judges. Because of the vague language in the Charter, purposive analysis actually imposes no limits whatsoever on the policy-making ability of the courts.

Now that we’ve determined that the Court has been a principle contributor to dubious legislation in Canada, the question should be asked ‘what is it in Canada that has allowed the courts to erode our moral fiber with this legislation?’ Groen Van Prinsterer writes “everything therefore points to a general cause…and this cause must be sought in the ideas which have predominated.” Everything proceeds from doctrines, and it seems that the underlying doctrine that has motivated the Court in its Charter-based rights cases is the philosophy that man is best served when matters of personal interest are left to the individual. Of course, this assumes that there actually are ‘matters of (solely) personal (and not collective) interest’. This philosophy also completely ignores the fact that man is not independent of God; as John Donne states, “no man is an island, entire of itself.” The most dangerous aspect of our culture is the individualism that is assumed by almost every Canadian. Even Christians have adapted this view. How often haven’t we heard the gospel watered down in many mainstream churches to suit matters of personal taste? How often isn’t the argument against abortion limited to the rights of the unborn? More recently, how many arguments against Bill C-250 were based in Charter-type arguments about individual freedom of religion, instead of being rooted in the inherent evil of these lifestyles? At the very heart of this understanding of the Charter is vigorous individualism, total selfishness, and denial of God. This doctrine of individualism is also internally inconsistent: western democracies are based on a foundation of individualism, yet these same democracies are continually perpetuating legislation with rights-speak that arbitrarily erodes certain individual freedoms (such as religious freedom). When judges favour one interpretation of the Charter instead of another, they attach constitutional legitimacy to one minority view in favour of another.

There are, however, means with which a strong Parliament can counter the effects of judicial interference. Specifically, the Section 33 ‘notwithstanding clause’ states that a government may declare legislation valid outside of the Charter for a period of no more than five years, at which time the legislation must be reconsidered in the legislature. This section has to date only been applied in Quebec language law legislation and in Saskatchewan back-to-work laws. The problem is that any law which has been deemed unconstitutional by the Supreme Court is automatically stigmatized and can only be enforced by a government backed by overwhelming public support. This may seem like a simpler condition than it really is since most voters are likely to resist any legislation that is purportedly denying them ‘rights’. Again, we see that the issue here is not a purely legislative one, but rather an inherent problem with Canadian rights-based culture.

Section 1 of the Charter also allows the government to restrict certain rights provided that it is beneficial for society to do so and that it imposes minimal restraint on individual freedoms. This is the strongest statement in the Charter in limiting individual freedoms, and amounts to very little in actuality since the Court is free to decide what is beneficial for society and what the minimum restraint thresholds are (this was codified in the famous Oakes Test).

As Christians then, what can we do to counteract the effects of judicial activism? In a purely pragmatic fashion we can try to ensure that our members of Parliament have the fortitude and the public support (that is, our support) necessary to invoke Section 33 on issues like abortion or same-sex marriage. A silent group of Christians who are not willing to show their support to well-meaning politicians is completely useless in this respect. If we know, based on God’s infallible Word, of the evil of some policy or legislation, we must let our governments know of it, and we must remain supportive of politicians whose actions abide by it. Silence or barely-audible grumbling are not options.

Second, but not less important by any means, we should use the most effective weapon available in our Christian arsenal: the gospel. “Stand firm then, with the belt of truth buckled around your waist, with the breastplate of righteousness in place and with your feet fitted with the readiness that comes from the gospel of peace.” (Eph. 6:14,15). We must bear witness to the truth of Jesus Christ in this fallen world. This should not be a mandate based in conservative thinking (a return to the good old days), but rather a recognition of the overpowering supremacy of our victorious Saviour. Any revival of Canadian culture would then be a simple consequence of the gospel’s power to “transform us in the renewing of our minds”, and not the end in itself. So be refreshed because the battle is won; now we must fight the good fight of faith and win our neighbour for Christ.


Sources (Contact the author)

Barker, P. and Charlton, M. Concurrents in Contemporary Politics. (2002) Scarborough, Ontario: Nelson Printing.

Knopff, R. and Morton, F.L. Charter Revolution and the Court Party. (2000) Peterborough, Ontario: Broadview Press.

Malcomson, P. and Myers, R. The Canadian Regime. (2002) Peterborough, Ontario: Broadview Press.

Manfredi, C. Judicial Power and the Charter: the Paradox of Liberal Constitutionalism. (1993) Toronto, Ontario: Mclelland & Stewart Inc.


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