Backlash Against the Courts

Until recently, the courts in Canada and their judges were considered sacrosanct and above criticism. Not any more. This development is not surprising when one considers some of the truly extraordinary decisions that have been handed down by the courts in recent years.

Supreme Court of Canada

The Toronto law school, Osgoode Hall at York University, organized a conference in April to exchange ideas about the Charter of Rights on its 16th anniversary. The conference brought together both knowledgeable academics and experienced lawyers, who publicly acknowledged, for the first time, what has been obvious to many -- namely, that many decisions of the Supreme Court of Canada make no sense. According to participants at this conference, the Supreme Court of Canada is producing a stream of incomprehensible decisions, which Osgoode Hall law professor, Jamie Cameron, described as "jurisprudential chaos theory", unanchored from any discernible principles.

Others complained that the Supreme Court of Canada has muddied the waters in regard to the admissibility of evidence in crimes, such as the decision last June in the Feeney case in which the Supreme Court threw out the conviction of an accused, who was found by police in his trailer wearing a shirt covered with the victim's blood. The case was thrown out because the police didn't have a warrant before they entered the trailer, even though the Criminal Code at that time did not require one. The accused is now walking free on the streets of his community. This travesty and others have given rights and protection to the accused, while making it nearly impossible for police officers to perform their duties to protect law-abiding citizens across the country.

The Supreme Courts' decisions seem to lack any sense of coherence. For example, on the one hand, in 1988, the Supreme Court of Canada decided it couldn't proceed in the Borowski abortion case because the abortion law had previously been struck down, i.e. there was no law on which to make a decision. On the other hand, however, the court recently "read in" protection on the grounds of sexual orientation in Alberta legislation in the Vriend case, even though sexual orientation was a category Alberta legislators had consciously and deliberately omitted. Also, in the Winnipeg glue-sniffing case, the Supreme Court of Canada held that it was up to Parliament, not the court, to protect pre-born children from substance abuse. On the other hand, in the Vriend case, the Supreme Court of Canada decided that it, not the legislature, needed to champion sexual orientation as a protected category in the Charter of Rights.

In short, it appears that Canada's Supreme Court judges won't hesitate to contradict themselves in order to fulfill their own vision of a "perfect" world. As stated in an editorial in the Globe and Mail on April 21, 1998:

It's not easy to give the impression of being both directionless and headed in the wrong direction, but the Supreme Court of Canada has somehow managed the feat.

The judges of the Supreme Court of Canada have become autocratic; they have extended their jurisdiction to the outer limits of power, limits which were never envisioned when the Charter of Rights came into effect in 1982. As stated in the same Globe and Mail editorial (April 21, 1998):

The [Supreme] court needs criticism ... if it is to become a more responsible branch of government, one more respectful of its limits.

Ontario Court of Appeal

Just a short generation ago, the Ontario Court of Appeal was regarded as one of the strongest courts in the country. Now it is regarded as the most foolish.

This is the court that brought us, as equality issues, women baring their breasts in public, lowering the age of consent for anal intercourse, changing the intent and purposes of legislation to provide homosexual/lesbian partners with spousal benefits and granting adolescent girls the right to play hockey on male teams, etc. Such foolish decisions continue without restraint.

One of the Court of Appeal judges responsible for many of these decisions is the hard-line feminist, Rosalie Abella, who consistently refuses to allow her mind to be confused by the facts. She is responsible for the decision to lower the age of consent for anal intercourse and also for the decision that wherever a custodial parent (usually the mother) decides to live, even if it's thousands of miles away from the father, is in the "child's best interests". In April, Judge Abella handed down some particularly startling decisions -- even for her. In the Rosenberg case, she decided that, contrary to the explicit wording of the Act, lesbian partners were eligible for spousal benefits. (See Courts Reject Traditional Values, p. ........) She also threw out an injunction prohibiting strikers from barring customers from entering a place of business, even though the pickets caused severe freeway blockages for miles, which created a dangerous situation. Had the injunction prohibited picketers at an abortion clinic, there can be little doubt, however, that Judge Abella, with her known propensities, would have upheld that particular injunction.

Abella's reasons for her decision in the picketing case were so shallow that the Ottawa Citizen, in an editorial on April 20, 1998, described them as "breathtaking". The heading of that editorial was very satisfying. It read "Fire this judge". If only we could.

New Brunswick Queens Bench

Mr. Justice John Turnbull, of New Brunswick's Queen Bench, ruled last October that aboriginals held title to all the trees on the province's Crown lands. In large part, he ignored the evidence submitted by the disputing parties and instead did his own research into the 18th-century treaties, the results of which were shown to neither party before he delivered his judgement.

The Ottawa Citizen, in an editorial dated April 28, 1998, stated:

A judgement based only on evidence brought forward by the judge, and decided on grounds no party had argued, is so patently flawed even a first-year law student could see it had to be overturned.

Where were the media when the Supreme Court of Canada did the very same thing in the Morgentaler (1988) case? At that time, the Court used a pro-abortion document called The Powell Report, which had not been presented as evidence, but which, nevertheless, was used as the basis for the majority of the Court to throw out the abortion law. In that case, as well, none of the parties saw this evidence before the decision was handed down.

The title of the Ottawa Citizen's editorial on the New Brunswick ruling was again very apt. It read "De-activate judges". We wish we could.

Reform Party Recommendations

The Reform Party has, at least, been pondering the problem of the zealous, activist judges, as well as the other problems with our federal-provincial system of government.

On May 7, 1998, party leader Preston Manning unveiled draft legislation for a "New Canada" for the next century, called the New Canada Act, which could adjust the powers of the federal and provincial government without actually amending the Constitution.

The proposals include greater parliamentary scrutiny of the appointments of the Supreme Court of Canada judges, and controversial Supreme Court decisions being reviewed by a parliamentary committee with a view to overriding them.

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