EYRE: ‘Lawfare’: How a weaponized Charter of Rights is preventing governments from governing

In a Supreme Court judgement in 2024, Justice Sheilah Martin gratuitously, unbiddenly referred to a sexual assault complainant as a “person with a vagina.”Off the record, Supreme Court Chief Justice Richard Wagner called the 2022 Freedom Convoy “anarchy, hostage-taking, forced blows against the state, justice, and democratic institutions,” which should be “denounced with force by all figures of power.” Dare to criticize such comments — let alone whether Wagner should recuse himself, as the constitutionality of invoking the federal Emergencies Act wends its way to the Supreme Court — and you’re accused of attacking “judicial independence.” Independence, let’s not forget, that judges themselves have weaponized. .EDITORIAL: Canada shut out: Carney’s absence in Washington is a national humiliation.To understand how politicized Canada’s courts have become, one must understand that judges once viewed their role not as policymakers, but interpreters of laws and the Constitution. In 1982, the late Supreme Court of Canada Chief Justice Bora Laskin said judges have “no freedom of speech to address political issues that have nothing to do with judicial duties … Absolute abstention from political activity is one of the guarantees of impartiality, integrity, and independence.” That was then. Post-Charter, too many judges have internalized the “living tree doctrine” — that the Constitution continually adapts to “evolving” social and political contexts — and are increasingly advancing expansive social policy positions based on political ideology. .The result is that governments, elected to pass legislation, are unable to tackle issues from homelessness to climate policy without being overruled by the Courts. They are spending millions fighting Charter challenges — often brought by only a handful of complainants. Since 2017, the federal Court Challenges Program has spent $25 million funding liberal causes and intervenors 96% of the time, according to the MacDonald-Laurier Institute. Ontario’s Superior Court recently sided with just two University of Toronto students to stop the provincial government from dismantling bike lanes to ease traffic congestion. Under the Charter’s Section 7 (Life, Liberty, and Security of the Person), the government cannot, ruled the court, “knowingly make the streets less safe.” Talk about begging the question. .EDITORIAL: BC nurse's $94,000 fine shows Canada's free speech crisis.“This is the most ridiculous decision I’ve ever seen, that a judge overrules the people of Ontario because of ideology,” said Premier Doug Ford. “But we knew when they picked this judge where it was going anyway, so it’s not a big surprise.” An effort by the Ford government, meanwhile, to dismantle drug injection sites, including near schools and daycares, is also on pause pending another Section 7 legal challenge.In a case with major precedent impact across the country, Ontario’s Superior Court held in 2023 that homeless encampments must effectively remain in place until shelter spaces are found for every resident. The City of Waterloo’s attempt, via municipal bylaw, to dismantle a 70-structure homeless encampment on city property was held to violate — once again — Section 7 of the Charter. Stated the Court, “The constitutional right to shelter is invoked when the number of homeless exceeds available and truly accessible shelter spaces.” .The same court agreed in 2023 with just seven environmental activists challenging Ontario’s climate plan that it is an “indisputable fact that Ontarians are experiencing an increased risk of death” from climate change. According to Ecojustice lawyer Fraser Thomson, who represented the activists, the ruling “effectively boxes Ontario in and subjects its climate record to full Charter scrutiny.” The Supreme Court recently denied Ontario’s appeal request in the case, which is now heading back to court. This, as similar youth-led climate cases are making their way through courts in other provinces. Meanwhile, last month’s International Court of Justice’s ruling that a clean environment is a “human right” was hailed by climate activists as a major victory which will inform future court decisions and legal challenges — including to the new federal major projects Bill C-5. .EDITORIAL: Au revoir, Quebec: A bon voyage for the battered West.This, as the federal government has been steadily signing on to international human rights declarations devised by non-elected bodies — then demanding compliance from provinces. For example, the UN Declaration on the Rights of Indigenous Peoples (which requires “free, prior, and informed consent,” or de facto veto, over major economic projects) is being stealthily embedded in Canadian legislation.In a 2023 editorial, Alex Neve, formerly of Amnesty International, declared even the Charter old news: “Existing domestic human rights laws disregard crucial economic, social, and cultural rights such as health, housing, and an adequate standard of living, which are guaranteed under international law.”.What’s being disregarded, of course, is parliamentary sovereignty.So, what to do? Premiers are increasingly looking to the Notwithstanding Clause. Routinely called the “nuclear option,” it’s actually a perfectly legitimate use of Section 33 of the Charter — and the most powerful tool governments have to assert parliamentary sovereignty.Allan Blakeney, former NDP premier of Saskatchewan, would agree. A constitutional scholar, Blakeney fought hard for the Clause’s inclusion in the Charter in 1982. In 2010, he wrote that the state could invoke it for “economic or social reasons, or because other rights are more important.” .EDITORIAL: One rule for thee, another for indigenous Shakespeare.Let’s not forget that from 1982 to 1985, Quebec “notwithstood” everything. More recently, the province has considered using the Clause — which sunsets after five years — to stop medical grads from practising outside the province and banning public prayer. It also pre-emptively invoked it to prevent public sector employees from wearing religious symbols at work.Some argue that these are ‘negative’ rights — and therefore unjustifiable under the Notwithstanding Clause. But, of course, ‘negative’ or ‘positive’ is in the eye of the beholder. The question is whether a Legislature has the power to make policy and pass legislation in these areas. It does. And if the majority of the voting public doesn’t like them, they can vote the government out. .In a powerful dissent on Saskatchewan’s pronoun policy and its use of the Notwithstanding Clause, Court of Appeal Justice Neal Caldwell wrote, “If my understanding of our Constitution is incorrect, then it is time that we collectively admit that the story we tell ourselves about Canadian democracy — that we are governed by the people (i.e., the ‘demo’ in ‘democracy’) through their elected representatives — is at best incomplete and at worst self-delusional. If I am wrong, then we live in a country where a minimum of five unelected judges can always reverse the intent of 343 elected members of the House of Commons (and that of the elected members of the provincial Legislative and National Assemblies) through the exercise of their ‘great deal of discretion’ in interpreting the law of the Constitution.” It is high time that the pendulum swings back. Interestingly, Quebec and Alberta have talked about forming an “autonomy alliance,” which would create a “special deliberation mechanism for legislative bills and include the Notwithstanding Clause to dissuade court challenges.”.CARPAY: Neither freedom nor democracy is destined to live forever.If only such a mechanism could reform federal catch-and-release laws. In 2023, Justice Harrison Arrell released violent offender Randall McKenzie, citing Criminal Code embedded bail rules that mandate “vulnerable population” considerations. “It’s a very iffy case,” Arrell wrote. “I appreciate all the violence in his record, but part of that is his native background, education, and employment opportunities.” Six months later, McKenzie killed OPP Constable Greg Pierzchala. The shocking case highlighted 2018 federal Criminal Code amendments, which codified the “principle of restraint” — that bail must be granted at the “earliest possible opportunity” on the “least onerous conditions.” .Despite limited subsequent tweaks to the Criminal Code by the federal government, nothing fundamentally has changed. Two recent high profile judgments, however, have boldly countered activist creep. .MCTEAGUE: ’Net-Zero' Carney's going to build new pipelines? I'll believe it when I see it!.One was by Judge Maria Carrocia in the recent junior hockey players’ trial who wrote, “Although the slogan, ‘believe the victim’ has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and placing the burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.”“It is not the function of this court,” she went on, “to make determinations about the morality or propriety of the conduct of any of the persons involved in these events. The sole function of this court is to determine whether the Crown has proven each of the charges against each of the accused beyond a reasonable doubt.”.In a parallel, brave judgment, Nunavut Justice Paul Bychok sentenced a repeat sexual offender to eight years — far higher than the Crown had been seeking and counter to the Gladue sentencing principle, which mandates special consideration for indigenous offenders. Bychok countered with the sentencing principle flowing from the federal missing and murdered women’s inquiry that a judge’s primary consideration should be deterrence. “Far too many reported cases across the country appear to give mere lip service to the hurt done to victims of domestic violence,” he wrote. “Colonialism’s legacy has affected Inuit women and girls every bit as much as Inuit men.”Asked recently whether Canada is “soft on crime,” Sean Fraser, the new federal minister of justice and attorney general, said we “can’t operate in the space of slogans and soundbites.” Talk about an understatement.Bronwyn Eyre is the former Saskatchewan Minister of Justice and Attorney General.This column appeared in a modified form in the Epoch Times.