by Jane Gaffin
This article was originally published in the Whitehorse Star on April 26, 2002 in recognition of the Canadian Constitution Act’s 20th anniversary.
April 17, 2013 will mark its 31st anniversary and interpretations have grown worse–not better–as the Constitution and its Charter centerpiece continue to age into an obsolescence trumped by politically-correct Marxism under advisement of the United Nations.
These documents are supposed to reign as paramount law of the land until repealed, which would bring on rebellious attention of a tyrannical government in the wings. So, the documents linger at the door, ignored or trounced, dismantled in slow motion, by such government offenders as lawmakers, law enforcers, Crown prosecutors, activist judges, human rights commissions, and the like.
The Charter of Rights and Freedoms–the important centerpiece of the Constitution Act of 1982–has been doing damage to democracy since the brainchild of the late Prime Minister Pierre Trudeau was enacted 20 years ago (1982).
The Charter has removed governance from the hands of elected parliamentarians and placed the power for deciding political policy with nine appointed justices of the Supreme Court of Canada.
Since the majority of laws are not charter-proof, the contentious ones blatantly infringing on civil liberties, like the firearms act and anti-terrorism legislation that are destined to wind up for a constitutional airing in the highest court.
As a result, the Charter has expanded the justice system into the nation’s biggest growth industry.
Anything one may have learned in civics class about fairness, natural justice and legality upheld by the courts is becoming obsolete. Interpretation of the constitution is swinging away from judicial restraint in favour of ruling by politically-correct judicial activism.
Much to the horror of traditionalists, who hold to principles of applying only law that is there and nothing else, judicial activism interprets the constitution as a “living” document. A judge makes up stuff that isn’t there and moves things around that is there to come out with the desired results in the name of “social justice”. (Another term for the societal adjustment which Communist Manifesto author Karl Marx declared “equity” in his crusade to exterminate the middle class.)
Heated arguments rage in both Canada and the United States as to whether a constitution should be treated as an organism or as a legal document.
In one camp are those who believe judges should issue rulings based on the whims of society and the influences of special-interest groups who want to control the lives of others.
In the other camp are those who fear anything short of judges sticking to the law will dismantle democracy and put ordinary citizens at high risk to be judged wrongly or unfairly.
The disagreement has increased the cry for Supreme Court justices to be elected.
In Canada, the Supreme Court justices are essentially hand-picked appointees of the prime minister without further scrutiny; in the United States, justices are appointed by the president but must be confirmed by Congress.
An equal number of sitting Democrats and Republicans has made it difficult for President George Bush to fill 99 vacancies on federal benches with his nominees. The Republican president wants only federal judges who will interpret rather than make the law; the Democrats will only approve judicial activists.
If, however, judges were elected, voters would have to choose them on their political positions and not on their ability to interpret the law. It would open the ugly possibility for judicial corruption.
Even the most principled candidates would need a political agenda and campaign donations. Whoever pays the piper could call the tunes and get the “best justice”–whether it be lawyers, big corporations or good-old-boy political cronies.
Elected judges is not the concern. The real problem is judicial restraint having been trumped by judicial activism.
Earlier this month, the Chief Justice of the Supreme Court of Canada came to Whitehorse (April 4, 2002) to give a public lecture about the Charter of Rights and Freedoms.
Beverly McLachlin likened the Charter to a “living tree”, a term dating back to 1929 when a spokesman for the Judicial Committee of the Privy Council opined that the Canadian Constitution should not be regarded as “frozen” but should be seen as a “living tree”, capable of growth and expansion within its natural limits. In this respect, women were recognized as persons.
Survey polls have indicated about 82 percent of Canadians would like to “canonize” Trudeau for his constitutional centerpiece which they believe provides a unique identity for Canada unlike any other nation has.
A smaller percentage of the population would just as soon have “cannonized” the former prime minister for unraveling 115 years of a perfectly-functional constitution and bequeathing supremacy for policy-making to the Supreme Court of Canada.
Regardless of which camp one sits in, there is no end to discontent swirling around decisions flowing from the Charter, a document signed into law by Trudeau and Queen Elizabeth on April 17, 1982.
Translating broad statements of rights into functional doctrine and finding the right balance have led to an increased recognition of the importance of context, policy and philosophy in judging, said Chief Justice McLachlin.
Judges used to never acknowledge those three words as part of their jobs, she continued. But the Charter has forced judges to acknowledge that before making decisions that affect people’s lives or government policy, judges must have some understanding of the circumstances in context with the problem and the implications of deciding one way or the other.
Traditional decisions can have important policy ramifications and judges now face difficult philosophical issues, she added.
But through this process she hopes Canada can develop a Charter interpretation that will serve the country quite well. Judges have to think about these thing when crafting the rules.
“You can make it fairly definite but you want to keep enough flexibility so that if (big issues) change or it turns out what you’re doing is having problems, you can shift it around.
“The Charter, quite simply, is our ‘made in Canada’ way of dealing with our problems, and, I, for one, think we are fortunate to have it,” she concluded.
Still, the Canadian Constitution can be compared to the U.S. Constitution by virtue that the laws of both countries stem from English common law that evolved from the Magna Carta to become “the Supreme Law of the Land”.
It was only natural that the principles of British common law found their way to British-controlled Canada. By the same token, the English emigrates who sailed across the ocean to establish American colonies also embraced the British legal system they knew and admired.
“Now, judicial usurpation of democratic self-government is not a uniquely Canadian phenomenon,” noted Ian Hunter in a recent “Natioinal Post ” article.
The professor emeritus in the faculty of law, University of Western Ontario, drew on the words of Robert Bork, a former U.S. Appeal Court judge and a Supreme Court nominee. “Our country is being radically altered, step by step, by justices who are not following any law.”
Hunter also enforced his point by quoting an excerpt from a profound dissenting opinion written by U.S. Supreme Court Justice Antonin Scalia, an “originalist” who holds tenaciously to a philosophy that the U.S. Constitution is a legal document.
“What secret knowledge, one must wonder, is breathed into lawyers when they become justices of the court,” wrote the articulate Scalia, appointed to the Supreme Court bench by former Republican President Ronald Regan in 1987.
“Day by day, case by case, (the court) is busy designing a constitution for a country I do not recognize.”
Two years ago, Scalia took his judicial philosophy to two separate crowds of 500 each on a university campus in Milwaukee, Wisconsin.
He was reported to be unpopular because of his refusal to view the Constitution as a “living” document. Altering the Constitution’s meaning just because society changes is “seductive”, he declared.
“The Constitution is not an ‘organism’,” emphasized the justice whose strong stance is to preserve and protect the document’s original meaning.
Judges who don’t adopt an “originalist” or “textualist” approach have no judicial philosophy and are issuing rulings based on the majority view of society at a given time, he said.
It has only been within the past 40 years that U.S. justices like Earl Warren began to see the Constitution as an evolutionary document that could be interpreted differently with the passage of time.
The socialistic notion slipped over into Canada where judges, and much of the public, support the “living” concept, thus allowing the Constitution to say anything one wants it to say.
Scalia is adamant that the Constitution must remain static. “But that doesn’t mean laws cannot change to reflect changes in society,” he suggested.
Meanwhile, many judges treat the Constitution and statutes as if they were written in disappearing ink.
“Activist judges recognize the parts they like, ignore the ones they don’t, and simply re-write the parts they think should be updated or change,” scoffed Thomas Jipping, who deals with legal and democracy matters for the Free Congress Foundation.
Rather than servants to the law, activist judges have set themselves up as masters of the law, he stressed.