GIESBRECHT: Woke judges are forcing women to shower with men and stripping parents of their rights — this is what happens when courts go rogue

In what has become known as the “Swinging Dicks” case, a Washington Court of Appeals judge used deliberately provocative language to register his disgust with his fellow judges for essentially forcing conservative Korean spa owners to allow a fully intact naked man to dress and shower with their very uncomfortable female clientele.Here is the now-famous first sentence of the judge’s dissenting opinion:“This is a case about swinging dicks.” The case is a classic example of liberal/progressive judges forcing women to accept men in their private spaces by invoking “trans” rights. It illustrates perfectly how differently conservative and liberal/progressive judges will decide cases on transgender and other “woke” issues. While the same fact situation has not been decided here, one can easily imagine the same thing playing out in a Canadian human rights tribunal or court. Western Standard readers will be familiar with the case of “Jessica Yaniiv,” who has been able to exploit “trans” rights in a similar fashion.A similarly fraught topic would be the Alberta and Saskatchewan “parental rights” legislation. There, with overwhelming public support, the legislatures have legislated that school personnel must notify parents if their child voices a desire to change his or her pronouns. Most Canadian judges will be inclined to disallow such legislation, for the simple reason that most judges in Canada are picked by liberals/progressives for their liberal/progressive views, and — unsurprisingly — are liberals/progressives. They would see that legislation as a violation of transgender rights, as opposed to the way conservative judges would see it — as a violation of the rights of a parent to see to the best interests of their child. That liberal/progressive majority sets precedents that even the few conservative judges remaining on the bench must follow. This dynamic almost guarantees that where trans rights conflict with parental rights, the trans side will win — even though the overwhelming majority of the population is on the side of parental rights.Race-based sentencing is another obvious difference between liberal/progressive and conservative judges. The former believes that offenders of certain races should receive lighter sentences, while the latter believes that race-based sentencing is wrong..At one time, Canada had a reasonable balance of liberal/progressive and conservative judges, so controversial topics like these were not such a big issue. But, particularly at the federal level, years of Liberal appointments, with the Trudeau government appointing almost no small “c” conservative judges, have resulted in a federally appointed bench composed overwhelmingly of liberal/progressive judges. So far, polite attempts by the premiers of Quebec, Ontario, Alberta, and Saskatchewan to have some say in the appointment of federally appointed judges have been met with a blunt “No” from Ottawa.All of these issues of bias and unfairness are at play in the Saskatchewan parental rights “pronoun” case that is currently headed for the Supreme Court. That case deals with the only remedy provinces have to stand up to this perceived unfairness — the Notwithstanding clause.What’s that?Section 33 of the Canadian Charter of Rights and Freedoms, known as the Notwithstanding clause, allows federal or provincial governments to temporarily bypass specific constitutional rights for up to five years. And it is the only defence conservative provinces have to the liberal/progressive courts.Section 33 was essential to the passage of the 1982 Constitution. The premiers, particularly Alberta’s Peter Lougheed, Manitoba’s Sterling Lyon, and Saskatchewan’s Alan Blakeney, were so concerned about possible judicial activism and the fundamental importance of preserving parliamentary supremacy, that they refused to sign Pierre Trudeau’s document unless the Notwithstanding clause was included — in its current unrestricted form. Only when Trudeau relented and agreed to include the clause did the premiers sign on.Unfortunately, the premiers’ hope that judicial activism would be restrained was almost immediately dashed. The most egregious example of judicial activism was the decision by the post-1982 Supreme Court of Canada to literally invent entirely new legal concepts under what was supposed to be their mandate to protect “existing aboriginal rights” under Section 35, the aboriginal rights section. Fanciful inventions, like “Aboriginal title” and “Duty to Consult and Accommodate” that would undermine property rights and natural resource development, would have horrified the premiers, and would even have dismayed the pre-1982 Supreme Court. But that didn’t stop activist judges, like Lamer, McLachlin, and Abella, from making up “laws” as they saw fit. The self-imposed “reconciliation” campaign they embarked on in 1990 was a project entirely unknown to both the pre-1982 Supreme Court and the framers of the constitution. It definitely was not an “Aboriginal right” that existed before 1982. This was judicial overreach, judicial activism in its most negative form..What we see playing out in British Columbia right now, with basic property rights being undermined and much of the province being divided into racial enclaves, stems from the very judicial activism that the premiers feared in 1982. The Eby government is being blamed for their inept handling of a bad situation, and undoubtedly, the passage of DRIPA and other unfortunate decisions have made a bad problem even worse. The federal Liberal government, since 2015, has also contributed to the mess. But the original problem stems from the Supreme Court’s 1997 Delgamuukw case, and the line of cases that followed — culminating in the radical Cowichan decision. The premiers would never have signed on in 1982 if they could have foreseen what an overreaching Supreme Court was about to do with Section 35. BC residents are now paying the price for this activism. Soon, the rest of the country will be too.Unfortunately, agreeing to include Section 35 — even with the word “existing” preceding “aboriginal rights” — wasn’t the only mistake the premiers made in 1982. They also agreed to a very flawed document that failed to constitutionally protect property rights, while exempting Section 35 from the Notwithstanding clause. Even if property rights had been constitutionally protected, and the Notwithstanding clause had been able to annul some of the courts’ worst overreach on Section 35, Canadians — and particularly BC residents — would have been in a far better situation today.But while the Notwithstanding clause can’t override Section 35, and can do nothing to preserve the basic property rights being savaged in BC and elsewhere, it is still essential to preserve other basic rights, such as parental rights, from the progressives’ agenda. Because it is not just Section 35 that has been the subject of judicial activism. There is a very long list. And, unlike Section 35, the Notwithstanding clause remains as the only protection the provinces have against it.And it is that last remaining remedy the federal government is asking the Supreme Court to significantly change. It wants substantive limits put on both when and how the clause can be used.The actual Section 33 “Notwithstanding” case that the Supreme Court is hearing technically deals with Quebec’s use of the clause for cultural reasons (Bill 21), but the case affects all provinces. The federal government wants the Supreme Court to alter the clear, unrestricted wording of the clause by removing the rights of provinces to use it preemptively, and by authorizing courts to issue declaratory judgments even after Section 33 has been invoked. Alberta, Saskatchewan, and Ontario have intervened with Quebec to argue that Section 33 is a constitutional compromise and should not be touched, while Manitoba and British Columbia support the “declaratory judgment” proposal. I suspect that the Supreme Court will resolve the Notwithstanding case politically, with a result that will give the federal government some of what it wants, while trying not to offend Quebec too much. Chief Justice Wagner is highly tuned in to politics in his home province, Quebec. So it is unlikely that the court will do anything to disallow Quebec from using the clause for the language and cultural legislation that Quebec believes is necessary for cultural preservation. If Quebec were unable to use the clause, and its Bill 21 (cultural legislation) was struck down or severely limited, support for Quebec sovereignty would spike. The Supreme Court mainly acts as a political body on matters like these. It is unlikely to craft a decision that will displease both Ottawa and Quebec too much..If the Supreme Court does what I suspect in this case — namely, to order that courts could proceed with the issuing of declaratory judgements after Section 33 is invoked — we could see an open revolt against a court system that is seen as being unrepresentative of Canadian values. Here is a highly likely scenario: A province could invoke Section 33 (Notwithstanding clause) for up to 5 years on a court decision striking down parental rights legislation. When that government came up for reelection, it might be voted back into power on a promise to use Section 33 to protect that same “offensive” legislation for another 5 years in defiance of the court’s ruling. That could happen. It would be open warfare between the provinces and the courts. How could that possibly be a good thing for the country? The best thing for the Supreme Court to do would be to simply leave Section 33 as it is written, with no additions, exceptions, or qualifications tacked onto it.But it is doubtful that it will.The unfortunate fact is that Canadians who believe in conservative values will not find their views well represented by this Supreme Court, regardless of the outcome of this particular case.And that is a problem for this country. The old balance of conservative and liberal/progressive judges has been drastically altered and will remain that way for decades to come. Previous Liberal and Conservative administrations understood the importance of trying to keep a healthy balance of conservatives and liberals/progressives on the bench, but the Trudeau administration did not. The result is an unhealthy paucity of conservative voices on the bench.The problem starts at the top. Chief Justice Wagner is a learned and capable man. .But he is the epitome of a liberal/progressive judge who does not accept the conservative point of view as being valid. He has described his Supreme Court as being “the most progressive court in the world.”To him, this is the ultimate compliment to himself and the judges under his leadership. He might not appreciate that to the conservative half of Canada, this is not a compliment at all. This became clear when he insulted half of the country that supported the trucker convoy protests against government overreach during the COVID-19 period — calling legitimate protesters “anarchists” who “should be dealt with by force.” This was not appropriate. His remarks were also a clear sign that he failed to understand that the conservative half of Canada does not see things the way he and his court do. His Supreme Court is supposed to represent and protect the values of conservatives in Western Canada as well as urbanites in Eastern Canada.The other judges on our highest court are also fine people. But where are the conservatives?Even if modest measures, such as Alberta’s request to have input into the selection of federally appointed judges, were accepted, it would be many years before there was any measurable improvement. We will continue to see cases like the Saskatchewan parental rights case, where even modest legislation that is overwhelmingly supported by the citizens is struck down by liberal/progressive judges..The problem is even worse at the human rights tribunal level, where the appointment of radical leftists as adjudicators is leading to appalling injustice. The case of Barry Neufeld is a sad example of that. A man who expressed strong feelings about what he considered to be harmful SOGI legislation and policies was financially ruined by extreme liberal/progressivism. Even raising objections to public drag shows can subject a citizen to prosecution in one of these forums, as an Alberta woman recently found out.There is a good argument that human rights tribunals have served their purpose and should be disbanded entirely, but that’s an argument for another day. At the very least, radical Leftists, like the zealots who destroyed a man for legitimately expressing opinions they don’t like, should never be placed in positions of power.It is expected that the Supreme Court of Canada will rule on the Notwithstanding case sometime in 2026 or early 2027. It is possible that even before that ruling comes out, independence referendums will have taken place in Quebec, Alberta, or both provinces. If either or both provinces vote “Yes” to independence, that will trigger constitutional discussions between the province(s) voting “Yes” and the federal government. Those discussions will eventually involve all of the provinces. That debate might give Canadians an opportunity to correct some of the mistakes made in 1982. Property could be constitutionally protected, Section 35 could be made subject to the Notwithstanding clause (or eliminated entirely), and other mistakes could also be rectified. But the one clause that must remain as written is the Notwithstanding clause. It is the only protection provinces have against judicial overreach.

GIESBRECHT: Woke judges are forcing women to shower with men and stripping parents of their rights — this is what happens when courts go rogue

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