Charter of Rights an instrument of folly
Canadians content to let judges make choices
Is the Charter of Rights and Freedoms an instrument God is using to drive rulers to their wits end and "make fools of judges" (Job 12:17)? One can argue the case (although some will insist that judges are quite capable of making fools of themselves). Regardless, the fact that the Charter has bequeathed tremendous influence in Canadian society to judges provides enormous scope for judicial folly.
The nub of the problem with the Charter, as law professor and author Ian Hunter sees it, is that while we have a Charter of Rights, we lack a Charter of Responsibilities. "We are in the process of forgetting what judgment means, of why a person must be held accountable for his actions," he writes in Three Faces of the Law.
Hunter also holds the Charter responsible for an increasing number of Supreme Court judgments that have "ceased to be law" and are "instead a random collection of the judges’ personal and ideological reflections."
Disconcerting developments
The impact of these disconcerting developments is multiplied by the expanding role of Canadian courts in determining social policy. More than a few observers have been complaining about this for years. Their concerns are given credence by a recent survey of more than 100 of the 125 judges who make up the federal and provincial courts of appeal.
According to a report in the Globe and Mail, the authors of Final Appeal: Decision-making in Canadian Courts of Appeal were surprised at the extent to which subjective discretion permeated even the most run-of-the-mill cases. The four Canadian political scientists who conducted the survey also reported that many of the judges are uneasy with their new role as lawmakers. One appellate judge told them: "After the Charter gave the judges the right to strike down a statute, altering the common law was a piece of cake."
By and large these changes are detrimental to organized religion. The church’s moral tradition certainly counts for less. And courts, rather than politicians, are increasingly at the vanguard of social change. An understanding of law as social process–the product of competing social interests and goals–is waxing strong; an understanding of law as a reflection of moral truth is on the wane.
As the authors of Final Appeal observe, "It was most certainly the case prior to the Charter that nearly all Canadian judges resisted a lawmaking role for the courts.... They espoused the legal positivist school of thought that good judges merely interpret the law. It is striking how quickly and completely the traditional view has faded."
Evidence of the expanding role of judges and the implications for religious freedom in Canada is not hard to find. In each of the accompanying examples (see box), courts are being asked to settle disputes where traditional standards of Christian morality are at odds with modern social policy.
Hunter believes that the ultimate danger of the new judicial activism "is that we lose the faculty of judging, the ability to discriminate between good and evil, innocence and guilt. And with it we lose the moral authority to punish transgressors. Let there be no mistake," he continues. "At the end of this road is not tolerance, but tyranny. When we shrug off the burden of judging we shall not find utopia, a tolerant city set upon a hill. We shall find a concentration camp."
No formulaic solution will resolve these problems. Hunter concludes: "What saves an individual is a broken and contrite heart seeking forgiveness; what will save a society is when such hearts are numerous enough to comprise a critical mass politically undeniable. One sees few signs of such a critical mass in Canada."
Doug
Koop
Editor
December 16, 1998: In a ruling on a dispute over whether to allow gay-friendly books in kindergarten and Grade 1 classrooms, B.C. Supreme Court Justice Mary Saunders determined that "a school board is not permitted to implement a decision made upon religious views." Does the judge really mean to deny religious belief a place in public deliberation?
December 30, 1998: In a case likely to go to the Supreme Court of Canada, Madame Justice Rowles dissented from a B.C. Court of Appeal decision that supports a morally-conservative Christian college’s application to train public school teachers. Although no evidence that Trinity Western University-trained teachers discriminate against homosexuals was presented, she argues that the school sends a harmful "message" by teaching that homosexual practice is sinful. Is preventing potential discrimination a higher value than religious and academic freedom?
January 7, 1999: A gay and lesbian rights group sued the federal government to force the rewriting of 58 laws that don’t grant equal rights to homosexual couples (e.g. prison conjugal rights, spousal income tax entitlements). Foundation for Equal Families asserts that the Supreme Court of Canada has already affirmed such rights under the Charter of Rights and Freedoms, but that politicians have failed to make the changes. "It’s simpler for them to do this rather than to comply with the principles that have been established," says lawyer David Corbett.
