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On December 20, 2002, the Supreme
Court of Canada (SCC) overturned a decision by the Surrey
School Board that would have kept gay-friendly books out
of kindergarten and Grade 1 classrooms. James Chamberlain,
a kindergarten teacher and homosexual activist, took the
board to court when it refused his request to introduce
Asha’s Mums and several other books to his class. The
court said that trustees had given too much weight to
parents concerned about the morality of homosexuality.
What if there were homosexual parents with children who
might be adversely affected? Calgary Alliance MP Jason
Kenney was astonished. "Every conservative lawyer I spoke
to before the decision came down," he commented at the
time, "told me there was no way the court would overturn
the board’s decision."
Perhaps they have not been
paying attention. The causes that win court challenges
in Canada are those that get government grants, and gays
top the list. The Surrey decision was but the latest in a string of
court- and human-rights-commission rulings that have established
homosexual rights, even though Parliament deliberately
excluded any mention of them in the Charter of Rights
and Freedoms in 1982. In the Surrey case, the Supreme Court did not even have to
invoke the Charter of Rights; it merely reinterpreted
a clause in the School Act promoting secularism. In doing
so, it overturned the decision of an elected school board
that had overwhelming support from the parents it represented.
Public opinion is far
less influential in shaping public policy than special
interest groups, especially groups favoured and funded
by the federal government. These are many and diverse:
feminists, homosexuals, criminals, environmentalists,
multiculturalists and minority-language groups.
Feminists have been among
the most active of the Court Party groups, usually by
invoking section 15 of the Charter which prohibits discrimination
based on "race, national or ethnic origin, colour, religion,
sex, age, or mental or physical disability." (In
1995 in the Egan case, the court added or "read in" sexual
orientation to the list.)
Of the 47 feminist cases brought to court between 1982
and 1996, 72% were successful. These included cases on
abortion, discrimination in the private sector and pornography.
In the Butler pornography case, feminists successfully
argued that erotic material was pornographic if it objectified
women, not because it offended public morality. At least
one feminist testified as an expert witness to support
the "artistic merit" claim in Robin Sharpe’s 2002 child-pornography
trial.
University of Calgary political
science professors Ted Morton and Rainer Knopff have labelled these groups collectively the "Court Party" because they
seek to push their agenda through the courts rather than
through democratically elected governments.
Their success since "rights-mania"
took hold in the 1960s, and especially since the Charter
of Rights took effect in 1984, has been dramatic. In their
2002 book The Charter Revolution and the Court
Party,
Profs. Morton and Knopff
note that the Supreme Court of Canada dealt with 10 times
more constitutional-rights cases in the 16 years after
the Charter than in the 20 years before that under the
federal Bill of Rights.
An analysis of Supreme
Court decisions by graduate student James Kelly found that of the 35 cases brought under the Bill of Rights, only five
were successful. By contrast, of the 390 cases under the
Charter, 130 rights-seekers were successful. By 1999,
the court had struck down 65 government statutes under
the Charter, compared to only one under the Bill of Rights.
What had changed, oddly
enough, was not a huge expansion of enumerated rights,
but the attitude of judges. As Ted Morton
points out in his book Law, Politics and the
Judicial Process in Canada,
Charter rights were, with three additions, merely repetitions
of those in the Bill of Rights.
Nor does the Charter order judges
to rewrite laws, or "read in" new "analogous" rights,
as many people seem to think. It merely allows them to,
if, in their opinion, the Charter is being breached. The
question arises: "Should the opinions of appointed jurists
outweigh that of the elected lawmakers?"
Prof. Morton argues that the
judges under the Bill of Rights still exercised a tradition
of "self-restrained and deferential" interpretation of
the document. They believed in the supremacy of Parliament
as the law-making arm of government.
Post-Charter judges have felt
less restrained. Provincial courts have recently used
the Charter to force government spending on sign-language
interpreters in hospitals, pricey early-intervention programs
for autistic children and rollbacks of provincial budget
cuts in Ontario. The courts, in effect, have ordered governments—in
these cases, provinces—to spend money to meet what they
feel are Charter obligations.
Native groups have won over 50%
of their Charter challenges. Among the most controversial
decisions was the 1999 Marshall case, which upheld or
expanded treaty fishing rights in New Brunswick. That
decision resulted in armed clashes between Native and
non-Native fishermen, which forced the court to review
its decision. Another was the Supreme Court of Canada’s
1997 Delgamuukw decision, which found that aboriginal
title in B.C. had not been extinguished. The 2002 Treaty
8 decision recognized oral history as evidence in determining
treaty rights. The court’s expansive interpretation of
treaty rights has been criticized by many, including Supreme
Court Justice Michel Bastarache.
Judicial power-snatching did
not begin with the Charter, however; there were earlier
signs of it. In 1975, for example, the Supreme Court convinced
Prime Minister Pierre Trudeau to restrict the right of
appeal. Now the court decides who can appeal based on
its own undefined notion of "public importance."
But the biggest booster
of court power was the rise of special interest groups.
Chief among these were feminist groups, who were consulted
about the wording of the Charter in the early 1980s. Minority-language
groups, first in Quebec and later in the other provinces,
also brought many cases before the Supreme Court and often
won. More recently, groups advancing homosexual rights
have also exerted influence.
Both feminists and minority-language
groups were bolstered with hefty grants from the federal
treasury very early on. In 1977, the Trudeau government
founded the Court Challenges Program (CCP),
specifically to assist groups to oppose the new Parti
Quebecois government’s restrictive language laws.
In 1985, the Mulroney government
expanded the CCP to include selected "equality" cases
under the Charter. They surrendered control of the $9-million
fund to the left-liberal Canadian Council on Social Development.
University of Western Ontario
political science professor Ian Brodie,
author of Friends of the Court,
points out that the whole thing comes down to the
government funding special interest groups to allow itself
to lose in court (folks, this is a colossal charade
- the government and judiciary are in cahoots with each
other and playing the game of hoodwinking us, the people
- RJ) The CCP actually set
up some of the groups in order to fund their lawsuits:
for example, the Canadian Prisoners’ Rights Network, which
helped win the right to vote for federal inmates.
In the late 1980s, when
Joe Borowski went (without government help) to the Supreme
Court to establish that Section 7 grants the unborn the
right to life, the CCP funded the Women’s Legal
Education Action Fund (LEAF) to oppose him. The pro-family group REAL Women applied without
success for funding to intervene on behalf of Mr. Borowski.
In 1992, the Mulroney government
shut down the CCP, but the Chretien government resurrected
it in 1995 as an independent corporation run by many of
the people whose groups had been funded by it. Shelagh
Day (a
militant lesbian) of Vancouver,
for example, a founder and former president of LEAF, became
a co-chairwoman of CCP’s equality panel. The new independent
body was no longer required to disclose which cases it
funds, or how much money it spends on them. No one, even
in the government, now knows how CCP spends its almost
$3 million of taxpayer money each year.
Prof. Brodie notes that
many recipients of CCP money also get additional funding
from the federal Secretary of State, although the total
amount of Ottawa’s largesse is impossible to determine.
At first, Ottawa disclosed any expenditure of $10,000
or more, but this was later raised to grants over $50,000
and is now set at $100,000 (chronic, habitual liars).
Since the court read
in sexual orientation to the list of equality rights in
the 1995 Egan case, activists have won significant gains.
In 1998, the court read in sexual orientation into the
Alberta Human Rights Act in the Vriend case. In the 1999
M v. H case in Ontario, the court said that the denial
of the right to sue following the breakdown of a same-sex
relationship violated section 15 by not treating homosexual
couples equally with married couples. That decision affected
dozens of provincial laws and has paved the way for a
redefinition of marriage, currently being considered by
the federal Justice Department.
Prof. Brodie’s best guess
is that the Secretary of State funnels between
$20 million and $30 million a year to interest groups.
In addition, aboriginal claims are entirely funded by
the federal government through Indian Affairs. He says
about half the funding for women’s groups comes from government,
as does one-third to one-half of the funding for multicultural
groups.
Mark Milke, author of Tax Me, I’m Canadian,
says federal MP John Bryden, a rare Liberal critic of
government funding to political causes of any sort, pegs
annual federal funding for all charities and non-profits
(he includes hospitals) at $19 billion. Mr. Milke says
the Status of Women Secretariat under Heritage Minister
Sheila Copps
hands out $10.8 million a year in grants and contributions.
The National Action Committee on the Status of
Women, whose federal funding was reduced in recent years,
received almost $4 million during the 1980s, compared
to the conservative REAL Women’s $89,000 over 20 years.
Many of these feminist groups--LEAF,
for example--also have a charitable tax number and can
issue receipts for donations, even though much of their
work is political lobbying. Mr. Milke, former director
with the Canadian Taxpayers Federation, notes that these
groups would probably fold if not funded by the government
because they do not enjoy strong public support.
Whether they have public
support or not, however, they have been very successful.
As authors Morton and Knopff point out, "While formal
constitutional change is purposely made difficult to achieve
and is thus rare, real change can and does occur in incremental
fashion through judicial interpretation. Each judicial
interpretation is like a mini-amendment."
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