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Book Review
Against Judicial Activism
By: Rory Leishman
McGill – Queen’s University Press 2006
(Available from Amazon Canada
and Chapters/Indigo - $44.95)
Journalist Rory Leishman has done a great service
to Canadians by bringing together and analyzing the major
judicial and human rights tribunal decisions, which have transformed
Canadian society since the Charter of Rights was passed in
1982. If you want to know what changed our country from its
traditional way of life and values in the last few bewildering
years, this book makes it all clear. Case by case, he relates
the outrageous decisions of these appointed courts and tribunals.
It makes for chilling reading as it exposes in clear and unambiguous
language how judges and human rights panelists have stifled
the historic rights and freedoms of Canadians on little or
no evidence. Mr. Leishman states at page 120,
The rule of law has, to an alarming extent,
given way to the arbitrary rule of human rights adjudicators
and judges.
Human Rights Tribunals
According to Mr. Leishman, not only are the
decisions of the tribunals not based on any rules of procedure
and evidence, the tribunals themselves have been given the
widest latitude to interpret human rights by supportive, liberal
courts who share the same ideology as the tribunal panelists.
Worse, even if the disputed words are the truth, this is no
defence before the Mad Hatters Tea Party, which constitutes
a tribunal hearing.
This is why tribunals in B.C., Quebec and
Ontario reached the absurd conclusion that even though neither
the provincial Human Rights Codes nor the Charter mention
transsexualism, transsexuals are protected by the law by merely
representing themselves as women because they believe they
are women, even though they physically remain men. That is,
all that is necessary now to qualify as a woman in law, is
to self-identify as a woman, although in all biological respects
that person is and always has been a man. This “enlightened”
interpretation has led to such bizarre situations as a night
club in Victoria being fined because a club bouncer refused
a cross-dressing man, still one of the boys under his frock,
from using the women’s washroom. A rape relief centre
was forced to accept a transsexual to counsel rape victims,
and a man, a convicted murderer, who self identified as a
woman, was incarcerated in a woman’s prison (where he
subsequently entered into a relationship with “another”
woman). Under orders of the Canadian Human Rights Tribunal,
Correctional Service Canada ended up paying for his six sex
reassignment surgeries at taxpayers’ expense.
Zealous human rights tribunals regularly stamp
on the religious beliefs of Christians such as mayors of numerous
cities who, for religious reasons, do not wish to declare
gay pride days, or Scott Brockie, a Toronto printer who was
forced by the Ontario Tribunal to print homosexual material
contrary to his religious beliefs.
Supreme Court of Canada
Mr. Leishman states at page 92:
To an alarming extent, unelected, activist
judges on the Supreme Court of Canada have become a law unto
themselves. While purporting to uphold the Canadian Charter
of Rights and Freedoms, they routinely rewrite or ignore the
common law, statute laws, and constitutional laws of Canada.
Time and again the Supreme Court of Canada
has intruded into the legislative process because, as Mr.
Leishman states at page 15:
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.
Since the Charter of Rights came into effect
in 1982, the Supreme Court of Canada has presumed to change
the law and dictate national policies on abortion, euthanasia,
homosexual and lesbian rights, aboriginal land claims and
fishing rights, and the admission of refugees and immigrants
to Canada, to name only a few of the many judicial intrusions
and remaking of the laws which had been passed by the legislatures.
The arrogance of the Courts knows no bounds.
The reason judges should not be making law
is just common sense as expressed by Mr. Leishman at page
151:
Judges lack both the skills and information
necessary to determine sound public policies. Few judges have
experience in crafting the political compromises that are
often necessary to mobilize popular support for effective
public policies. Besides, judges cannot pretend to uphold
the rule of law while making major alterations in the law
in quick response to changing social and political circumstances.
Moreover, judges have few means of assessing
the potential impact of their changes since they do not, unlike
Parliament, have the benefit of expert witnesses, nor do they
hold public hearings. Judges typically devote no more than
a day or so to hear oral arguments and, in addition to this,
read a customary 20 pages of written legal arguments, received
from legal counsel, even though the cases may be vastly complicated
ones.
Mr. Leishman states at page 133:
Canada’s Supreme Court judges and
human rights commissioners are no angels, yet they have taken
to changing the laws and governing the rest of us. Is this
appropriate? In conformity with the principle that governments
derive their just powers from the consent of the governed,
should we, in Canada, not insist that our elected legislators
curb the law-making powers assumed by our unelected and unaccountable
judges?
Mr. Leishman is perfectly correct in his careful
analysis of the arbitrary and monstrous tribunal and judicial
decisions that have transformed Canada in recent years.
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