The Supreme Court of Canada building in Ottawa.
Brian Dijkema recently wrote a significant comment about his – and others’ – increasing distrust of Canada’s court system.
Dijkema, who is President of the non-partisan think-tank Cardus (“formed by the teachings of Jesus and by the Christian social thought tradition”) refers to Trinity Western University’s foiled attempt to start a law school.
Following is the beginning of his comment, which was posted on The Line September 26.
In ancient times, when I was a graduate student studying political and legal theory in Toronto, there were those among my peers whose favourite thing to do was to worry about the judiciary.
The concern was the possibility latent in our new constitution of supreme court judges acting as legislators, rather than adjudicators of the law (for the kids, I’ll remind you that I am the same age as the repatriated constitution; in the early aughts, that’s still new).
If that other bugaboo of our governmental system, the Senate, was unelected, and unequal, at least there was the consolation that it was ineffective. Not so the Supreme Court of Canada [SCC]; their decisions are final, no appeals.
And if you care about the rule of law, as I do, you can’t just ignore these decisions without risking punishment or significant upheaval in the body politic. Trust in the political system is critical to a functioning democracy; and trust in the nation’s highest court to render justice is a cornerstone of that.
My response to my chicken-little friends at the time was to counsel just that: trust.
Today, I wouldn’t offer that same advice. The facts have changed. And I think I was wrong.
It was a risky stand for me to take even then, I admit. Already at the time there were indications that the SCC was ignoring the “natural limits” that prevented the so-called “living tree” of constitutional interpretation to grow feral and overshade the legislatures.
We had not yet come to appreciate justice Beverly McLachlin’s interpretation of that debatable doctrine, in her own image, when she said that “our constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.” (My emphasis)
Despite this, I still counselled trust and patience, and I had good reasons and good evidence for doing so.
There was the court’s decision in the Rodriguez case to uphold criminal code provisions which prevented doctors from killing willing patients, even in the face of pressure to do otherwise, was one example.
Another was the Court’s decision in 2001 to ensure that students of Trinity Western University, a Christian university who held a minority view on sexuality and whose students were required to abide by a code of conduct shaped by that view, were not discriminated against by the B.C. College of Teachers on the basis of those beliefs. The court required the B.C. College of Teachers – an administrative body created and authorized by the province – to certify TWU’s teacher’s college.
I’d say to my friends: “Look, you might not like some of the court’s decisions, and there’s reason to be concerned, but if they can uphold the fact that killing is murder even if it’s willed by the victim, and if they can uphold religious freedom in the face of tremendous social and institutional pressure from the state, we can lower the temperature on our worries. We can trust the courts.”
People called me naive at the time, but the truth is that I had the evidence to back up my call to trust the courts.
But then came the case of TWU wanting to start a law school, and its opposition by an almost identical set of state-created and -authorized administrative bodies, the law societies. The cases were almost identical in the facts: no actual discrimination, and a state-authorized body looking to prevent a non-state school from recognition on the basis of religious belief.
In this case, the SCC acknowledged that the law societies were violating religious freedom, acknowledged the general impropriety of the state discriminating on the basis of religion against private actors and then . . . said go ahead and discriminate. No law school for TWU. . . .
Go here for the full comment.