At a June 22 news conference, Chief Justice Richard Wagner said that he is “very proud” of the fact that the Supreme Court of Canada is the most “progressive” court in the world, due to its “ground-breaking” and “nation-changing” rulings.
The word “progressive” refers to a worldview or ideology which typically includes the beliefs that we are morally superior to our unenlightened ancestors; that advancements in the realms of science and technology necessarily or automatically lead to a better or more just society; and that human nature itself is no impediment to creating a paradise on earth.
An example of progressive expression can be found in Justin Trudeau’s explanation for women making up half of his federal cabinet: “Because it’s 2015.” Progressives are optimistic that a utopia can be achieved if governments create or impose the right social, cultural and economic conditions.
In contrast, the word “conservative” is associated with the belief that human nature is unchangeable, and that people are capable of doing great evil as well as great good. Conservatives believe that while some social and moral improvements are possible, human nature itself will ensure that we never achieve utopia; social engineering usually causes more harm than good.
Whether one agrees or disagrees with these definitions of “progressive” and “conservative,” the point is that these beliefs are inherently political. Each set of beliefs will translate into very different laws and public policies. A quick glance at numerous political parties and movements around the world which describe themselves as “progressive” or “conservative” should dispel any doubt about these being political terms.
Constitutional law, however, should transcend the ongoing political battles between progressive, conservative and other political agendas. The “free and democratic” society envisioned by the Charter, based on the rule of law, is one where unpopular minorities are protected from oppressive government laws and policies that violate the freedoms of religion, expression, conscience, association or peaceful assembly.
While declaring his preference for progressive politics, Chief Justice Wagner referred repeatedly to the rule of law in his June 22 interview. He claimed that when it comes to upholding the rule of law, Canada provides a shining example to all the world.
Yet one week earlier, he and five of his current colleagues issued a judgment against Trinity Western University (TWU) that trampled Charter freedoms into the ground, in the name of politically correct “diversity,” a vague notion of “equity,” an amorphous “public interest,” and nebulous “Charter values.”
The Court didn’t bother to define these feel-good terms, whose meaning must therefore be determined by the subjective feelings and personal opinions of individual judges. This is entirely contrary to the rule of law, which has been defined clearly and brilliantly by the Supreme Court in prior cases.
The rule of law ought to mean that Canadians are governed by clearly defined laws, not by the whims of kings, politicians, the mob, or judges. The rule of law should also mean that the Charter protects the freedoms of minorities, even in the face of the ever-changing “moral values” to which Chief Justice Wagner refers.
The political slogans and vague concepts relied upon by the Supreme Court in TWU are not mentioned in the Charter as justification for violating citizens’ freedoms of association and religion. Yet Chief Justice Wagner says these fuzzy terms should trump actual Charter freedoms.
When judges can use ill-defined “Charter values” to crush real Charter freedoms (which the Charter says are “fundamental”) Canadians will not keep their faith in the judicial system. This undermines the Chief Justice’s own stated goal of his Court maintaining credibility with the Canadian people.
If Charter rights are worth anything at all, they would, for example, protect the freedoms of evangelical Christians in 2018 as much as the freedoms of gay activists in 1988, to cite two examples of unpopular minorities in different epochs. A Court whose rulings shape and define the boundaries of our very freedom should not strive to be conservative or progressive, nor should it feel proud of any political label.
The TWU decision shows that a progressive court is a political court, which cannot be trusted to uphold the fundamental freedoms of those whose beliefs are not “progressive” enough. This bodes ill for the Court, for constitutional law, and for the citizens’ freedoms which the Charter is supposed to protect.
Lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms (JCCF.ca), which intervened in the TWU litigation in Ontario, BC and Nova Scotia to argue for freedom of association.