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Canada 's New Lawmakers how judicial activism undermines democracy, and how
By Charles McVety August 13th, 2008
Since the founding of Canada in 1867, this nation has had a reigning monarch but not a ruling Queen. Ever since Oliver Cromwell's battles to wrestle lawmaking from the hands of the king, elected Parliaments have been the legislatures of democracy. This has now changed.
After being appointed for life, Chief Justice Beverley McLachlin decreed on May 5 th, 2001, “the lawmaking role of the judge has dramatically expanded. Judicial lawmaking is no longer always confined to small, incremental changes. Increasingly, it is invading the domain of social policy, once perceived as the exclusive right of Parliament and the legislatures.” Judges across the country are now making new laws every month and changing the foundational fabric of the nation. Judges now rule Canada with Beverley McLachlin as the Chief lawmaker.
Modern Democracy is built on the basic principle that only elected legislators are empowered to write laws. The French Revolution, English Civil Wars and the American Revolution freed nations from the tyranny of ruling dictators who wrote laws with little regard for the common man. Political philosophers such as John Locke and Immanuel Kant espoused the ideology of freedom, democracy and a government's responsibility to establish a civil society. Abraham Lincoln's famous statement at Gettysburg, “Government of the people, by the people, for the people …” has become the bedrock for freedom-loving nations around the world.
Canada is such a country, one that values freedom, human rights, civil society and the supremacy of Parliament. All freedoms are jeopardized when appointed, unaccountable individuals arbitrarily write the laws of the land. The Chief Justice has changed the duties of Judges to tasks that more resemble ruling dictators. All elected officials, even the Prime Minister and the Cabinet, have been usurped by the lawmaking ability of judges.
Judges play a vital role in civilization with the responsibility of interpreting and enforcing the law, but not as lawmakers. In Beverley McLachlin's address, she stated “We all possess a certain image of a judge. He is old, male, and wears pinstriped trousers. He decides only what is necessary, says only what is necessary, and on no account ever talks to the press. He is respected and revered. His word is, literally and figuratively, the law, eternal, majestic.” In order to keep the peace and maintain a nation of laws, judges must adjudicate disputes and exercise the law. However, the Chief Justice seems to believe that their role far exceeds these duties. It amazes me that she believes that their words are “literally and figuratively, the law, eternal, majestic”. This sounds a lot like God.
For at least seven years, the Chief Justice has been teaching judges to be lawmakers. McLachlin's lecture, “The Role of Judges in Modern Society” of May 5th, 2001 is posted on the Supreme Court website where she instructs judges to accept this new role. The lecture states “There was a time, not so long ago, when the main job of judges was to resolve disputes. The whole common law is predicated on this notion. Two parties find themselves in disagreement. They cannot resolve it. So they go to a judge for a decision. Parliament made the laws. The judge applied them to the case.” McLachlin justifies judicial lawmaking by stating “...the new social policy role of judges cited by scholars is the perceived inability or unwillingness of legislative bodies to deal with pressing social issues.” In her opinion, our democracy has failed to change social policies to fit her agenda. Therefore, the Chief Justice has decided to assume power and take the law into her own hands.
The process to make these new laws undermines the integrity of the judicial system in Canada . McLachlin explains that in every legal case, “...there is a bi-polar dispute between the immediate parties, but, within it, there is a Charter issue that is polycentric.” Instead of Judges doing their duty, concentrating on adjudicating the dispute, today the judge looks for this polycentric principle upon which a new law can be superimposed.
Since 2001, Judges have been exercising their new lawmaking power creating substantial changes in Canada. The Chief Justice states, “It is impossible to eliminate the judge's personal views.” She goes on the say, “The judge must strive for objectivity. This requires an act of imagination.” After receiving such instruction, Ontario Chief Justice Roy McMurtry fulfilled his new mandate by writing a new law redefining marriage to include same sex couples in May 2003. Judge McMurtry was a frequent guest at Pride Parade events and his daughter is a lesbian. He then imposed his personal views on the country by changing the law. Immediately, men began “marrying” men. The new law was not appealed and several provincial courts followed the precedent set by Judge McMurtry. The result was a dramatic change to the legal definition of marriage. Every month, judges are making similar law changes that are not being appealed. These precedents become the new laws of the land and parliaments are subservient to these new decrees.
Many ask the question; who gave the Chief Justice her new power as a lawmaker? Canada 's constitution explicitly gives the exclusive power to write laws to Parliament. The Charter of Rights and Freedoms sets the foundational laws upon which the country is based however it does not give judges the power to be lawmakers. The Chief Justice is a self-appointed lawmaker.
In Beverley McLachlin's speech, she lays out the argument why judges must be lawmakers. She states, “ Another factor in the new social policy role of judges cited by scholars is the perceived inability or unwillingness of legislative bodies to deal with pressing social issues.” Her logic is that since parliament won't deal with a social agenda of change, then judges must step in and assume power. This assumption is backed by her perception of popularity. McLachlins states, “… public approval of the Court is tied to the perceived integrity of the judicial process.” She cites the “Institute for Research on Public Policy conducted last year, which found that 77 percent of Canadians were generally satisfied with the way the Supreme Court has been working.” With such a level of apparent public support judges can be legitimate lawmakers. Since when did popularity overrule the Constitution and the basics of democracy? With this logic Fidel Castro has a democratic right to be a lawmaker.
The Chief Justice goes on to admit that judges are neither educated nor equipped to make laws. She states, “The new task which judges have been assigned is not easy. There is a very real question whether courts, which lack resources for gathering and collating information and opinion available to the legislatures, are the best institutions to decide complex social policy questions. But that question is increasingly moot.” Even though they are not equipped the Chief Justice's resolve is to press forward in the face of admitted incompetence.
Opposition to this newfound office of ruler is also admitted. “Judges are said to be acting politically, to have descended (or perhaps ascended) into the political arena. Judges, on this view, are simply politicians who do not need to stand for election and can never be removed,” says the Chief Justice. She also states, “ Many judicial decisions on important social issues - say affirmative action, or abortion, or gay rights - will be political in the sense that they will satisfy some political factions at the expense of others.” And that “In their final form, judgments on social policy questions are often not all that different from legislation.” The fact is that judges are not accountable to the people, cannot have their decrees overruled by parliament or society and cannot be removed for bad “lawmaking”. They are now acting as political masters with the final say in legislating our society.
Elected politicians fundamentally are to express the will of the people, and if they don't, they are held accountable at the ballot box. Judges, however, are under no such check and balance, so where do they receive their guidance? The Chief Justice explains, “… she (a Judge) must attempt to strike the balance between the conflicting values which most closely conforms to justice as society, taken as a whole, sees it.” How does she determine what “most closely conforms” to society's will? I guess she reads the Globe and Mail and watches CBC.
The result is that Parliament has been usurped. The foundation of democracy is being slowly destroyed and over time judges will completely revamp the laws of Canada to suit their personal views. When individuals assume power and are not accountable to the people, the nation risks sinking into the abyss of dictatorship. Webster's dictionary defines dictatorship as, “…a form of government in which absolute power is concentrated in a dictator or a small clique.” It is apparent that a small clique of judges now possess absolute, unchecked power to make the laws of Canada.
This power is being used by Human Rights Tribunals to suppress religious freedom and freedom of speech. Judicial lawmaking is undermining parental authority, and the family. “If the foundations be destroyed, what should the righteous do?” We must pray and speak up by calling our elected Members of Parliament, media outlets and the Supreme Court of Canada. “If not you, then who? If not now, when?”
Update: Forty-two Organizations Appeal to Canadian Judicial Council to Sanction Chief Justice Beverley McLachlin Forty-two Canadian organizations and their estimated one million plus members collectively filed a letter of complaint with the Canadian Judicial Council on Wednesday, August 13 th , 2008 about federally appointed Chief Justice Beverley McLachlin for conduct that breaches the high standard of behaviour required to be a member of the judiciary. The complaint is based on six counts of violating the Constitution of the Order of Canada (an act of Parliament) and its regulations and one count of compromising the Supreme Court of Canada.
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