The ‘sovereign’ of a nation is that individual or small group of people whose decisions are without challenge, in short, the ‘decider’. In the case of Russia, the undisputed sovereign, the final decider, stands as Putin, a man who has fought his way to the top of the Russian oligarchy following the collapse of the Soviet Union. In China, Xi Jinping stands as the sole sovereign. However, in the case of liberal democracies, the question becomes rather muddled. Canada is a democracy, and although the British crown is our official sovereign, the monarch in England no longer has any real power over the Canadian state. As a democracy, we are, in theory, ruled by the commons. In practice, this translates into rule by unaccountable political elites. Even so, the parliament and Prime Minister are the De Jure holders of state power. However, upon closer examination, this notion proves false. While the parliament may have been the highest power in the government historically, the implementation of the Canadian Charter of Rights and Freedoms in 1982 has brought this state of affairs into question, with the contemporary Canadian parliament being subservient to the Canadian Supreme Court. In this article, I will attempt to demonstrate how the Supreme Court is above the Parliament of Canada in the realm of decision making.
The establishment of the Charter in 1982 cemented the defeat of the right-wing in Canada, completing the post-1963 collapse of the Canadian conservative into classical philosophic liberals. A 1988 debate between Brian Mulroney and John Turner highlights this divide, as even the liberals were less globalist than the ‘conservatives’ of the period. No longer could social conservatives advocate for laws that would defend the nation’s social fabric and uphold the collective good. An unchallengeable Supreme Court would promptly strike down these attempts. In this sense, the Breitbart doctrine of “politics being downstream of culture” is proven to be perhaps one of the more foolish statements in the history of modern conservatism as it espouses a view that is the exact opposite of the reality.
In Canada, culture is far downstream of power, with the institutions of government shaping the culture. Hence, immediately after the entrenchment of the 1982 Charter, the subsequent years saw the following Supreme Court decisions: the removal of the Lord’s day act and the end of Canada as a Christian nation (R v Big M Drug Mart Ltd 1985); the legalization of pornography (R v Butler 1992); the court recognising same-sex cohabitation; a significant precursor to the de-sanctification of marriage in Canada (M v H 1999); and the full legalization of abortion (R v Morgentaler 1988). These crucial questions regarding the moral future of the nation were each, in turn, determined by the Supreme Court rather than the Canadian parliament.
Canada as a Christian Nation
The end of Canada’s journey as a Christian nation was cemented in the case of R v Big M Drug Mart, wherein the Supreme Court of Canada overturned the Lord’s Day Act, an act mandating all businesses’ closure on Sunday to maintain the Christian day of rest. The appellant argued that the imposition of Christian values upon him was a violation of his freedom of religion. It is important to note that the court had previously ruled on the matter in 1963 under the jurisdiction of the Bill of Rights (1960). The case in question was one R v Robertson and Rosetanni (1963). The Supreme Court of 1963 handed down the following opinion in response to the appellants of the case:
"The Canadian Bill of Rights was not concerned with “human rights and fundamental freedoms” in any abstract sense, but rather with such “rights and freedoms” as they existed in Canada immediately before the statute was enacted. Legislation for the preservation of the sanctity of Sunday has existed in Canada from the earliest times and has, at least since 1903, been regarded as part of the criminal law in its widest sense. Historically such legislation has never been considered as an interference with the kind of “freedom of religion” guaranteed by the Canadian Bill of Rights. The effect rather than the purpose of the Lord’s Day Act should be looked at in order to determine whether its application involved the abrogation, abridgment or infringement of religious freedom. There was nothing in that statute which in any way affected the liberty of religious thought and practice. The practical result of this law on those whose religion required them to observe a day of rest other than Sunday was purely secular and financial. In some cases this was no doubt a business inconvenience, but it was neither an abrogation nor an infringement of religious freedom. The fact that it had been brought about by reason of the existence of a statute enacted for the purpose of preserving the sanctity of Sunday could not be construed as attaching some religious significance to an effect which was purely secular insofar as non-Christians were concerned. (R v Robertson and Rosetanni SCC record)"
In short, The Supreme Court of 1963 opined that while the Lord’s Day Act may impose secular and financial inconvenience upon non-Christians, they were not coerced into being Christian and were therefore still able to practice their religion. Thus their rights were not violated.
This position changes radically with the implementation of the Charter. In the case of R v Big M Drugmart (1985), the court took the view that the purpose of the Lord’s Day Act was to ensure observance by all to the Christian day of rest. The act was found to violate the recently minted Charter and was declared unconstitutional. This put an end to Canada’s tradition as an explicitly Christian nation and began the long decline of Canada’s founding faith in the public sphere. In light of this radical departure from Canada’s legal tradition, it is worth noting that of the six judges who passed an opinion on the case (the other three judges offered no opinion at all on the case) in 1985, five had been appointed by a government of Pierre Trudeau’s while a conservative government had only selected one. The apparent departure from the nation’s pre-existing social consensus was mandated by the Supreme Court with no contest.
In light of this decision, it is worth noting the opinion put forward by Chief Justice Dickson. Dickson examined the meaning of freedom of religion. In contrast to the American legal school of originalism, he looked to the general purpose of freedom rather than the explicit purpose of the Charter’s authors. This approach would offer future decisions on rights with extensive margins of interpretation. In doing so, Dickson established Canada’s extant legal philosophy, namely the ‘living tree.’ The Living Tree Doctrine asserts that the law must be interpreted progressively to properly adapt to changing times.
In the modern context, the Charter has begun to embed itself in Canadian conservatism. During the 2020 Conservative leadership race, at an Independent Press Gallery fireside chat, Derek Sloan made brief mention of originalism in reference to modern interpretations of Canadian law. It is important to note that originalism has never been a widespread legal philosophy in the Charter era of Canadian legalism. The charter is a modern document that was conceived and judged on liberal priors. In that sense, the usual ‘conservative’ legal position often touted by originalist legal philosophers in the United States is entirely untenable within the modern Canadian context. For modern conservatives seeking to assert conservative positions in contemporary politics and law, one cannot appeal to the ‘original intent’ of the Charter. The only reasonable position going forward is either a willingness to invoke section 33 of the Charter on every occasion or a willingness to confront the liberal nature of both the Charter and the Courts.
Traditional Marriage in Canada
To understand the fall of traditional understandings of marriage in Canada it is crucial to investigate the contributing factors. To that end, the roots of modern de-sanctified marriage lie in the cases of Egan v Canada (1992) and M v H (1999). In Egan v Canada (1992) the court determined that sexual orientation was an illegitimate grounds for discrimination - while simultaneously stating that certain legislation imposed a reasonable limit under Section 1 in being restricted to strictly heterosexual couples. Despite the court unanimously finding that discrimination on the grounds of sexual orientation was a violation of Section 15 of the charter, Justice Sopinka asserted that the legislatures needed additional time to recognize changing norms. As a result, the appellants were dismissed, while the legislature was given time to formulate an alternative, per the dictates of the Supreme Court. Despite the dismissal, the case ultimately stood as a victory for homosexual advocates, with the Supreme Court implicitly acknowledging that policies discriminating against homosexual couples violate the Charter.
However, as legislators were unwilling to address the issue due to perceived electoral ramifications, the court became impatient. Those legislators that wished to represent the socially conservative morals of their constituents were dealt with swiftly. The Alberta legislature initially excluded sexual orientation as a protected ground from its bill of rights (notice that it is now included). They were taken to court by chemistry lab instructor Delwin Vriend (Vriend v Alberta (1998)) who had been fired from King’s College on the basis of his sexual orientation, which was found to be incompatible with the University’s Christian values. Vriend alleged that discrimination on the grounds of sexual orientation was a violation of his federally-ensured Section 15 equality rights. The Albertan defence cited Sopinka’s opinion from the Egan case wherein the omission fell under a reasonable justification via Section 1. This argument for deference was rejected, as was the defence by the government of Ontario of the ‘Family Law Act’, which also excluded same-sex couples. Both of these cases conclusively demonstrate the reluctance of the Canadian people, via their proxies in provincial legislatures, to adhere to the Court’s determination of morality. Despite that reluctance, the will of the Supreme Court prevailed over the desires of the parliaments.
Here, the coercive force of the new regime becomes apparent, with the Supreme Court ignoring the clear will of the commons, and imposing liberal values upon the nation. Taking a punitive stance, The Supreme Court handed down M v H in 1999 as a response to the ‘Family Law Act’. Within M v H is the clear intent to demonstrate that the court will not tolerate discrimination on the grounds of sexual orientation under any circumstances. The case itself involved two women in a long term homosexual relationship with shared assets. Upon the collapse of their relationship the two attempted to divide their assets; the division did not occur, and M sought legal recourse via an order for partition. The court upheld their claims, cementing the conclusions drawn in Egan v Canada (1992) that discrimination on the grounds of sexual orientation would not be tolerated. The Ontario commons responded with the ‘Amendments Because of the Supreme Court of Canada Decision in M V H Act, 1999’: the petulant title was a clear attempt to shift electoral blowback away from themselves and towards the Supreme Court. Nonetheless, the Supreme Court had succeeded in coercing the legislatures of Ontario and Alberta into unwilling adherence to its agenda. A fact that was soon followed by the Federal ‘Modernization of Benefits and Obligations Act’ which served a similar purpose on a federal level.
The ramifications of this affair are threefold. Firstly, it demonstrates the objective dominance of the Supreme Court in terms of governing authority in the modern Canadian state. The desires of a few institutional elites overwhelm the desires of the common’s elected representatives. Secondly, it demonstrates the Supreme Court’s willingness to impose its values upon the nation despite popular reticence, a fact best evidenced by the extreme reluctance of the legislatures, which represent the opinions of the Canadian people writ large. Finally, this series of events demonstrates the ‘Living Tree Doctrine’ in practice; it is worth noting here that ‘sexual orientation’ is not at all included in Section 15 of the Charter.
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Yet, it has been read into the constitution, despite its explicit exclusion during its conception. In short, the SCC can entirely bypass the standard process for amending the constitution.
Legalizing Infanticide in Canada
To understand how infanticide became legal in Canada, it is vital to first understand the context that existed before the deciding case. Henry Morgentaler, a Polish immigrant, opened an abortion clinic in Montreal in 1969: he was completely flaunting the law, as abortion was illegal at the time. Morgentaler proceeded to abort the lives of countless Canadian babies and is credited with introducing ‘vacuum aspiration’ to Canada, an abortive procedure wherein the fetus is killed by means of vacuum, using suction force to tear the child from its mother’s uterus. He was eventually sentenced to 18 months in prison by the Supreme Court, but the PQ meanwhile announced that it would no longer enforce Section 251 (the section prohibiting abortion) of the criminal code. Having achieved his objective of imposing infanticide in Quebec, Morgentaler turned his sights to the other provinces. In 1983, he opened abortion clinics in Toronto and Winnipeg. These events would eventually result in his appeal before the Supreme Court.
R v Morgentaler (1988) was the culmination of Henry Morgentaler’s lengthy flaunting of Canadian law. A legal decision without rival in the history of Canadian legal history, the carnage unleashed upon the nation by this case cannot be understated. In 1988, the Supreme Court declared Section 251 of the criminal code to be unconstitutional, a decision which prompted the various provinces to adopt pro-abortion legislation. Provinces that attempted to resist such as Nova Scotia were subjected to the same tactics Morgentaler had previously employed, wherein he would, in defiance of the law, establish an abortion facility and begin to abort children. Once brought before the authorities, he would, as he had before, run up the appeals board until a sufficiently authoritative court would back his position (R v Morgentaler (1993)).
It is essential to note the supreme court’s approach to the abortion issue. Morgentaler’s opposite was a man named Joe Borowski, a blue-collar steelworker from Manitoba, who was not heard by the court until after the Morgentaler case had concluded. Joe Borowski attempted to argue before the Supreme Court that the Section 7's guarantee that “everyone has a right to life” obviously applied to the unborn. However, the Supreme Court, in the Morgentaler case, had just declared Section 251 of the criminal code unconstitutional. Hence, the law no longer existed, and Borowski’s arguments against it were therefore moot. Borowski and, by extension, the Canadian pro-life movement had been cut off at the knees by the court arbitrarily making a decision with national implications, without first hearing both sides of the moral argument. Thus, once more, the will of the Supreme Court prevailed over the will of the various parliaments of Canada.
It is interesting to note that the continued existence of abortion clinics and thereby, the continued practice of infanticide did not stand as a substantive violation of Section 7’s guarantee of life to all Canadians. This position can be used to infer the Supreme Court’s position on the personhood of an unborn human child.
Legalizing Pornography in Canada
The legalization of Pornography in Canada stands out from other cases in its unusual ‘conservative leanings’. Nowadays, pornography is purported to be a liberating affair, something necessary and good—best observed in the explosion of amateur pornographers on sites such as Pornhub and Onlyfans (a topic investigated in some detail here). However, in the 90s, the position of pornography as exploitative and demeaning of women was held as the orthodox feminist position. This was seen in the Women’s Legal Education and Action Fund (LEAF), a feminist organization that opposed pornography because it promoted violence and debasement of women. This opposition is discussed further in an essay written by a member of LEAF. That aside, it must be noted that at the time of the opinion, the SCC was conforming to the progressive orthodoxy of the era, a claim reinforced by the degree to which modern pornography violates the categories laid down in R v Butler (1992).
R v Butler was a case involving the censorship of Donald Butler’s pornography store as it violated Section 163 of the 1982 Charter. Section 163 was the section responsible for restricting the display of obscene material. Unlike R v Big M Drug Mart, where it was established that a law must be judged by the purpose intended by its authors, and therefore could not be defended by a ‘shifting purpose, Justice Sopinka determined that Section 163 had a “permissible shift of emphasis”, wherein its “shift in emphasis” rendered it compliant with the Charter. A keen-eyed observer will note there is no meaningful difference between shifting purpose and permissible shift of emphasis.
The Supreme court determined that the law was conceived merely to protect the moral sensibilities of society; however, “the prevention of dirt for dirt’s sake” was deemed to be an insufficient reason to violate one’s Charter freedoms under the reasonable limits allowed under Section 1. Due to the changing nature of morality, it would be unreasonable to continue to prohibit pornography merely for the sake of preventing “harm to society. Therefore Section 163 could not prohibit all pornography under the Charter merely for the sake of preserving moral sensibilities; this essentially legalized pornography in Canada.
However, Justice Sopinka laid down three distinct categories of pornography, detailing two categories that were not permissible under the charter and one that was: (1) explicit sex with violence, (2) explicit sex without violence, but which subjects people to treatment that is degrading or dehumanizing and, (3) explicit sex without violence that is neither degrading nor dehumanizing. Thus, as long as only ‘good pornography’ was depicted, there would be no violation of Section 163.
It is clear that this case, while heavily influenced by the pressures of various feminist groups, is almost entirely ignored in the modern Canadian environment. It is common for modern pornography to violate the categories laid down in the R v Butler judgement. Furthermore, this case excellently demonstrates the arbitrary nature of the Supreme Court. In what meaningful sense is there a difference between “shift in purpose” and “shift in emphasis”? Thus the Supreme Court demonstrates that they are unbound by any consideration of precedent or tradition that would have bound traditional sovereigns.
Section 33 and Harper
To convince the premiers of Canada (with the notable exception of Quebec) to sign the Charter, Section 33 was included, a section which in theory would grant the Canadian province more autonomy than the American state, whilst severely limiting the power of the federal government. That section goes as follows:
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
In theory, the notwithstanding clause would enable the commons to be sovereign without challenge. However, in practice, section 33 has several significant limitations regarding the agency of the various parliaments, both federal and provincial. Most apparent are the limitations upon acts that would violate Sections 2, 7 and 15 of the charter, Section 2 being the guarantee of the fundamental freedoms, including those of religion, belief, assembly, and association. It is likely that as a result of the R v Big M ruling, the use of Section 33 to reinstate the Lord’s Day Act would be deemed a violation of ‘freedom of religion’. Section 7 being the guarantee to life, liberty and security, means that the resumption of executions would likely be a violation of the section, though the section mysteriously does not apply to the unborn. Finally, Section 15 addresses ‘equality rights’, with 15(1) making allowance for the various affirmative programs meant to favour disadvantaged and minority groups.
These limitations, in addition to the SCC’s prerogative to determine government jurisdiction, have enabled the SCC to efficiently muzzle historical attempts to invoke Section 33 when a province finds itself at odds with the decisions of the SCC or Ottawa proper. A prescient example is Alberta’s attempt to invoke Section 33 in defence of traditional marriage, with the invocation of the section being used to shield the act from future charter challenges. However, the Supreme Court ruled that defining marriage was the exclusive domain of the federal parliament of Canada. Therefore the Albertan parliament could not legally invoke Section 33 in defence of traditional marriage. In this sense, the Supreme Court stands as the final voice in clarifying national ambiguity: wherever there is uncertainty in Canada the Supreme Court is the decider.
With the implementation of the 1982 Charter of Rights and Freedoms, Canada adopted American style judicial powers, and a period of immediate liberalization of the country followed soon after. The Supreme Court of Canada, reflecting the neo-liberal priors of their class, began to reject the consensus of the nation and impose their socially liberal values upon the Canadian populace at large. National positions regarding the sacred nature of marriage or legal infanticide were decided by the Supreme Court rather than by Parliament. When the laws of the Supreme Court were resisted by various legislative bodies, the decisions made by the Court gained the day. To that end, Canada, rather than being ruled by the representatives of the people, is governed in a truer sense by the Supreme Court. Empowered by an American style document, it determines the future social and moral direction of the nation, leaving questions of the purse to its legislative subordinates.