An online panel of lawyers organized by the National Citizens Inquiry on COVID-19 said the courts have failed to uphold Canadian rights since the pandemic began and a bleak future awaits..Lawyer Shawn Buckley kicked off the Friday conversation by saying Canadians had just experienced “the largest intrusion of government overreach into our personal lives, even in wartime,” without the courts putting on the breaks..Queen’s University law professor Bruce Pardy agreed. “I think governments will interpret what has happened so far as a green light to go ahead and do it again,” he said..Lawyer Leighton Grey said the 1982 Constitution enabled a “quiet revolution” to put judges in charge, something made most evident during the pandemic..“The judges have, in unison, sung the course of the government's narrative, and we can’t vote them out of power. In Alberta, people were really upset with our premier, and we got rid of him. We can't get rid of Chief Justice Wagner,” he said..“The judges can do…what they want. And the main problem of judicial activism in our country is that these courts are not answerable to the people for the decisions that they make, and they wield tremendous power.”.Lawyer James Kitchen said the “living tree doctrine,” that the constitution grows to become something new as time goes on, enables “judge-made law.”.“If…90% of the lawyers from whom the judges come from have a particular worldview, have a particular ideology, they cannot help but accept the invitation given to them to remake the country in their image,” he said..“And they can't do it overnight, but they can do it probably within the course of a few decades…That's part of what's going on.” he said..Kitchen said Americans are more likely to insist on a literal, originalist interpretation of the US Constitution, unlike Canadians..“We never even talk about that. We don't understand that. And we have no movement in this nation to go back to that,” Kitchen said..“Is it okay for judges to use the living tree doctrine in section one, to remake the nation? Well, no, it actually isn't. That's not democratic. That's not good for people. That's not going to represent all the people who actually like freedom and not socialism. So we need to stop that.”.Pardy agreed, but conceded case law was also necessary to clarify the Charter’s “very vague, almost platitudes, that really had no content to them.” .What makes our decade different, Pardy said, is that legislators, bureaucrats, and the judiciary “agree in the way we should proceed” and viewed civil liberties as “just getting in the way.”.“As far as the administrative state is concerned, this was not a failure. It succeeded beyond his wildest dreams. This was its pinnacle achievement, at least, so far…The active principle upon which our system is based now is the discretion of public officials to do what they think is best.”.Grey said the Supreme Court has influenced affairs by refusing to hear certain cases, such as the suit by Albertan Annette Lewis, who was taken off the organ transplant list for refusing a COVID-19 vaccine..“There was a case out of British Columbia, concerning privatization of medical services there…That was a really juicy issue for them to deal with. They said, no, we won't hear it,” Grey recalled..“They've brushed aside every single possible COVID case that could have come before them. And that's a concern, too. That's a form of judicial activism.”.Kitchen said it was already clear to him in March 2020 that the court had forgotten its job. .“The greatest thing to stop tyranny, and the required thing is the division of power amongst the executive, the legislative and the judiciary,” he said..“The three of them collapsed into one…That is a recipe for tyranny. What did we get? We got three years of tyranny. And it doesn't look like it's ever going to be reversed..He said six of his clients left Canada because he told them Canada had reached a point of no return. .“I said, ‘In my honest opinion, this country is beyond the point of return. And if you have a way out, I think for your sake, if you want to live as a free person, you should take it,’” he recalled..“The next crisis a few years from now, whether it's climate change, or God knows what, it's just going to keep going–you're going to have the unraveling of the rest of the rule of law and the rest of limited government and individual rights…And it's very scary.”
