Last Updated:Friday - 09/24/2010
June 17, 2002
Charter silences Canadians
Appointed judges not the people rule our country
SPECIAL TO THE WCR
Most people born before say, 1956, can recall where they were and what they were doing when they heard of President John F. Kennedy's assassination on Nov. 22, 1963.
I was a 13-year-old climbing aboard a school bus in Harvey Station, N.B. The circumstances associated with hearing bad news tend to stick with you.
Sept. 11, 2001 will be another such universally remembered jolt.
For me, another one of these psychological imprints was the day in 1980 that Pierre Trudeau announced that he would patriate the British North America Act and draft a new Canadian Constitution. I can't recall the exact date, but I was listening to CBC Radio in my car on the bypass outside New Glasgow, N.S. I remarked to my wife, "This is one of the biggest disasters in Canadian history." I haven't altered that assessment over the subsequent 22 years.
So I didn't join the celebration of the 20th anniversary of the Canadian Constitution and its Charter of Rights and Freedoms. Indeed, if I were a flag-flyer, I would have set mine at half-mast on April 17, 2002 - 20 years after the date the Canada I grew up in died, to be replaced by the politically correct, morally bankrupt dictatorship of judges we have today.
Thanks to Trudeau's Charter, Canadian law is no longer exclusively changeable by Parliament or provincial legislatures. In effect, the rule of law no longer applies in Canada, but is rather subject to the whim - and political ideology - of as few as five politically appointed and democratically unaccountable Supreme Court judges.
According to opinion polls, most Canadians have swallowed the propaganda that the Charter is a wonderful thing and have little cognizance of what was lost when Trudeau patriated the Constitution - notably that prior to 1982, Canada operated under the principle, rooted in the Magna Carta, that parliament had the final word and had to account for its decisions at election time.
Democracy took another major hit with the court challenges program under the Charter opening the floodgates for special pleaders and fringe interest groups to impose their minority - and often radical - will upon the majority through the fellow-traveler courts.
The concept of responsible government - responsible to democratic will - has been eroded to being mere window-dressing.
As Abraham Lincoln declared: "If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers."
Constitutional government is particularly insidious and pernicious when grafted onto a parliamentary system like ours, which was designed to have decisions made by government responsible and accountable to the will of the electorate, and which lacks the checks and balances inherent in the tripartite U.S. division of powers between the two houses of Congress and the executive branch.
The dangerous underlying presumption of the Constitution advocates was that the Charter would be self-interpreting. That was at best naive, and more likely a cynical bid of obfuscation.
Charters and constitutions are not self-interpreting and inevitably end up being interpreted and manipulated by power elites.
One prima facie example is the courts' determinations on homosexual rights. The drafters of the Charter explicitly and deliberately refused to include sexual orientation as a protected status in the document, but that didn't stop politically activist liberal judges from "reading into" the Charter gay-rights provisions that they essentially conjured out of thin air, egged on of course by the socially-left Chretien government, which hadn't the guts to pursue its gay-rights agenda in Parliament.
Another instance of "reading in" is the high court's determination that some child porn may have "artistic merit" - which allowed self-described "boy lover" John Robin Sharpe to be acquitted of two charges of distribution of child pornography for graphic child sex stories he wrote, thanks to the "artistic merit" defence.
Far from celebrating the Charter's anniversary, I would sooner see it abolished, and the supremacy of Parliament restored.
However, the realistic prospects for abolition happening anytime soon are not promising.
Abolition would require a constitutional amendment approved by the House of Commons and at least two-thirds of the provinces having at least 50 per cent of the countries' total population. That's a mighty steep hill to climb, although it should remain the ultimate objective for Canadian defenders of democracy.
The practical near-term hope of curbing the courts' social engineering rampage is to elect governments willing to exercise the Charter's "notwithstanding clause" early and often in correcting judicial excesses at the legislative level.
Heavy-handed abuse of power? Well, the notwithstanding clause actually does appear in the Charter. Homosexual rights and child porn "artistic merit" don't.
Who is really abusing power?
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