When Law is Cut Adrift: A Discussion of Ian Hunter's Three Faces of the Law
(The) law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from the original.
—William Blackstone, Commentaries on the Law of England (Oxford, 1765)
What has gone wrong with the Supreme Court of Canada? Why do so many of its judgements no longer make sense? Why can the Court no longer be counted upon even to uphold the basic principles of parliamentary government and the rule of law?
No one has addressed these questions with greater penetration than Ian Hunter in his latest book, Three Faces of the Law: A Christian Perspective. Hunter, a law professor at the University of Western Ontario and one of the foremost experts on human rights in Canada, has based the book on three masterful lectures he presented at the 1995 summer program of theological studies hosted by Dominion-Chalmers United Church in Ottawa. In having these lectures published in book form, the Work Research Foundation has performed an invaluable service for everyone concerned about the moral degradation of the law and the degeneration of democratic principles in Canada.
Would anyone want to challenge the premise that the Supreme Court of Canada is regularly running amok? Hunter notes that the Globe and Mail published an article on October 8, 1994, by its legal reporter, Sean Fine, headlined: "Has The Highest Court Lost Touch With Reality?" None of the cases cited by Fine to address this issue are among the four decried by Hunter in his book, including Regina v. Askov.
At issue in this case was the right to trial "within a reasonable time" as guaranteed by Section 11(b) of the Canadian Charter of Rights and Freedoms. In a quintessentially disastrous decision, the country's top court held that this provision imports that if trials are not held within six to eight months, the accused must be allowed to get off scot free. "In the province of Ontario alone," Hunter observes, "this meant that more than forty-seven thousand criminal charges were thrown out, including charges of attempted murder, manslaughter, robbery, assault, fraud, and many others."
Even Mr. Justice Peter Cory, author of the Askov judgement, was shocked by these results. In an address to the Advanced Legal Studies Conference in Cambridge, England in August 1991, he confided that the Court had no idea that its Askov ruling would have such horrendous consequences. "These remarks," says Hunter, "demonstrate that the Supreme Court is unprepared to accept responsibility for its actions" and indicate "how perilously out of touch with reality the Supreme Court of Canada is."
It's no coincidence that the disastrous Askov decision focused on the Canadian Charter of Rights and Freedoms. Prior to the incorporation of this alien U.S. institution into the Canadian constitution in 1982, Parliament, not the courts, would have decided what constitutes a practical and reasonable length of time for trial delays. Law-making by unelected judges is, as Hunter says, "the antithesis of democracy." There can be no rule of law, let alone democracy, in a country where unelected officials—be they military dictators, political commissars, or appointed judges—routinely make up the law as they hand down binding decisions. Yet this is precisely what the unelected judges of the Supreme Court of Canada have been up to for the past 15 years. They willfully flout time-honoured democratic procedures.
Enactment of the Charter did not make this abuse inevitable. As Hunter points out, "even under the Charter, the Court could have—and should have—developed a doctrine of judicial self-restraint, as the U.S. Supreme Court has done on occasion. Instead, the Supreme Court of Canada leapt at the opportunity to substitute its will for that of Parliament on the most contentious and divisive social issues of the day, such as its decision on abortion in the Morgentaler case."
Indeed, nothing has so disgraced the Supreme Court of Canada as its disastrous treatment of the abortion issue. Hunter documents how the Court's record on this subject since the enactment of the Charter has been replete with logical inconsistencies and ideological predilections that flout the rule of law. As a result, Canada now has the ignominious distinction of being, in Hunter's words, "unique among countries of the Western world in having no law on abortion.
Despite public opinion polls, which consistently show that more than two-thirds of Canadians favour legal restrictions on abortion, and perhaps as few as 10 per cent of Canadians actually favour abortion on demand, abortion on demand is the reality in Canada today. Abortions are legal to the moment of live birth. How has this occurred? The document responsible is the Canadian Charter of Rights and Freedoms. The government agency responsible is the Supreme Court of Canada.
Trivial conception of life
What outrage are the courts likely to perpetrate next? In the 1994 Rodriguez decision, the Supreme Court of Canada came within one vote of decreeing that Canadians have a constitutional right to kill themselves. In support of this viewpoint, Madam Justice Beverley McLachlin argued that "the right of each person to make decisions concerning his or her own body," affirmed in the Morgentaler decision, logically implies "the autonomy interest of those who wish to end their own lives."
Hunter responds: "It is difficult not to shudder when one contemplates what a trivial conception of human life our judges have. No God, no soul, no good and evil, right or wrong, just consumers making choices, including the choice to die. The trick, as both Morgentaler and Rodriguez demonstrate, is to subsume moral issues as consumer choices. 'No man is an island entire of himself, wrote John Donne, 'Any man's death diminishes me because I am involved in mankind'. Our judges are not involved in mankind; they are involved in vapid rights talk."
In defending the novel theory, contradicted by the Criminal Code as enacted by Parliament, that Canadians have a constitutional right to commit suicide, Chief Justice Antonio Lamer of the Supreme Court of Canada insisted that the Court should address this issue "without reference to the philosophical and theological considerations fueling the debate on the morality of suicide or euthanasia. It should consider the question before it from a legal perspective . . . while keeping in mind that the Charter has established the essentially secular nature of Canadian society."
As Hunter points out, the Charter establishes no such thing. On the contrary, the preamble to the Charter explicitly affirms "the supremacy of God." Instead, judicial imperialists like Lamer affirm the supremacy of the Supreme Court of Canada. This is a novel and blasphemous doctrine. It's reflected in the Court's contempt for the sanctity of human life—the bedrock moral principle of any democracy. As Hunter so well states, "Canadian law has become secularized, cut adrift from its moorings in the divine, no longer infused by natural law conceptions, looking for its ultimate validation not in eternal truth, nor even in the two thousand year heritage of the Judeo-Christian legal system, but rather in a recently-minted Charter of Rights, a Lilliputian statute fit for a nation of pygmies."
Called to hope
What, then, are we to conclude: That Canada's plight is hopeless? "If we had only the Charter of Rights to protect our freedom," argues Hunter, "we should have cause to despair; but Christians are called to hope not to fear." As Christians, we know and trust that no matter what happens, God is ultimately in command. He rules the destinies of the nations and He cherishes each one of us, even the least and the last.
"With breathtaking simplicity," affirms Hunter, "the New Testament proclaims 'God is love'. There is nothing else to God but love. All the other attributes which we ascribe to God are but manifestations of His love. Christianity proclaims a just God whose judgements may be trusted, a God of truth who understands our imperfections; a merciful God quick to forgive our shortcomings. A God before whom even our fear of judgement is unnecessary." What better or more certain basis could we have for hope?
In explaining the rational basis for this hope, Hunter invokes what he aptly calls "those shining words of Pope John Paul II, from his recent book Crossing the Thieshold of Hope:
The conscience [of people and Nations] needs to grow in the certainty that Someone exists who holds in His hands the destiny of this passing world; Someone who holds the keys to death and the netherworld; Someone who is the Alpha and the Omega of human history. . . . And this Someone is Love. Love that became Man, Love crucified and risen, Love unceasingly present among men. ... He alone can give the ultimate assurance when He says: 'Be not afraid'."