Wagner’s Progressive Court Rejects the Rule of Law

Chief Justice Richard Wagner Oversteps the Boundaries of Constitutional Law

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The Supreme Court justices pose for a group photo during the official welcoming ceremony for Supreme Court of Canada Justice Suzanne Cote at the Supreme Court Tuesday Feb.10, 2015 in Ottawa. Top row (left to right) Justice Clement Gascon, Justice Andromache Karakatsanis, Justice Richard Wagner, and Justice Suzanne Cote. Bottom row: (left to right) Justice Thomas Albert, Justice Rosalie Silberman Abella, Justice Beverly McLachlin, Justice Marshall Rothstein and Justice Michael Moldaver. THE CANADIAN PRESS/Adrian Wyld // Na021415-coyne

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.

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  1. I have been concerned and saddened over the last few decades as I have seen one political Party after another, both liberal and conservative, move Canada away from individual liberty and fundamental rights by eroding our Right to the exercise of Free Speech and Opinion and Freedom of Association and Religion. They dress up their theft of our Rights in progressive demagoguery. They even rationalize it as their duty to prosecute us for the words we utter. But at least I understood that these folks were chosen, elected, by the majority and could be unelected. I held on to hope that we could always rely upon our Supreme Court to maintain legal and moral objectivity when it came to questions of our fundamental Rights as defined in our Charter. I see now that the SCC is acting in ways that are arbitrary and capricious. We should be very worried, even frightened, when an unelected, unaccountable body with lifelong tenure demonstrates this sort of contempt for the Laws of the People and the Rights those Laws grant us. Sadly, Canadians are now being held captive to the subjective and arbitrary rulings of a Supreme Court that holds itself “above the Law”.

John Carpay

John Carpay was born in the Netherlands, and grew up in British Columbia. He earned his B.A. in Political Science at Laval University in Quebec City, and his LL.B. from the University of Calgary. Fluent in English, French, and Dutch, John served the Canadian Taxpayers Federation as Alberta Director from 2001 to 2005, advocating for lower taxes, less waste, and accountable government. Called to the Bar in 1999, he has been an advocate for freedom and the rule of law in constitutional cases across Canada. As the founder and president of the Justice Centre for Constitutional Freedoms, John has devoted his legal career to defending constitutional freedoms through litigation and education. He considers it a privilege to advocate for courageous and principled clients who take great risks – and make tremendous personal sacrifices – by resisting the unjust demands of intolerant government authorities. In 2010, John received the Pyramid Award for Ideas and Public Policy in recognition of his work in constitutional advocacy, and his success in building up and managing a non-profit organization to defend citizens’ freedoms. He serves on the Board of Advisors of iJustice, an initiative of the Centre for Civil Society, India.

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