London Free Press

May 28, 2002

Courts usurping Charter with rulings

By RORY LEISHMAN -- London Free Press

For the last month, the great majority of lawyers, law professors and judges in Canada have been celebrating the 20th anniversary of the adoption of the Canadian Charter of Rights and Freedoms. And, indeed, members of the legal profession have reason to rejoice. Under the pretence of upholding the Charter, they have contrived to transform Canada into a veritable juridical dictatorship.

Two recent cases vividly demonstrate how the courts have invoked the Charter as a pretext for subverting freedom under law. Consider, first, the ruling May 13 of the Ontario Court of Appeal in Falkiner v. Director, Income Maintenance Branch. At issue in this case was the "spouse in the house" rule that renders a person ineligible for welfare benefits if he or she shacks up with someone who can financially afford to support the entire household.

In the judgment of the court, this rule violates the equality rights of social assistance recipients in section 15 of the Charter. That's nonsense.

There is no mention of social recipients anywhere in the Charter and there is no reason to believe the legislators who enacted the Charter in 1982 implicitly intended to include them among the groups singled out for protection in section 15.

Typically, though, the plain language of the Charter and the intentions of the elected legislators in adopting it mean nothing to our robed dictators in the courts. Rather, under the cover of the Charter, our ruling judicial masters have taken to enacting their policy preferences into law.

At the time the Charter was enacted, every province had a "spouse in the house" rule. That's still true today. But that's of no account to the Ontario Court of Appeal, which insists government can cut off benefits for a welfare mother who marries her boyfriend, but not if she just moves in with him in what the court calls a "try-on relationship."

For vulnerable women and children, this ruling is a disaster. Instead of allowing the Ontario government to maintain welfare rules that encourage low-income couples to marry, the Court has mandated welfare benefits for mothers in try-on relationships that are far more likely to result in family breakdown, spousal violence and child abuse.

Who will foot the bill for the millions of dollars in extra costs entailed by this court-ordered extension of welfare benefits to shacked-up men and women? Taxpayers, of course. Under the guise of upholding the Charter, the courts in Canada have abolished one of the most basic of democratic principles -- no taxation without representation.

No less egregious was the ruling by the Ontario Superior Court of Justice on May 10 that the Durham Catholic District school board had violated the equality rights of homosexuals under the Charter, by forbidding a 17-year-old student from taking his homosexual boyfriend to a high school prom. In typical fashion, the court paid no attention to the fact Parliament had deliberately excluded any reference to sexual orientation in the Charter.

With this judgment, the court has not only violated the ostensible guarantee of freedom of religion in section 2 of the Charter, but also flouted section 93 of the Constitution Act of 1867, which upholds the right of Catholic parents to have their children educated in a manner consistent with the teachings of the Catholic Church.

That's typical of judges in the Charter era. Regardless of the Constitution, the Charter and the laws of Canada and the provinces, they are hell-bent on imposing their ideologies from the bench.

Moreover, the problem is not confined to Canada. It infects the United States and numerous other democracies.

In Coercing Virtue: The Worldwide Rule of Judges, Robert Bork decries how, "The nations of the West are increasingly governed not by law or elected representatives but by unelected, unrepresentative, unaccountable committees of lawyers no law other than their own will."

Let the judges, lawyers and law professors of Canada celebrate the power they have gained by abusing the Charter.

The rest of us should mourn the loss of the very rights and freedoms that this same Charter was supposed to guarantee.

Write Rory at The London Free Press, P.O. Box 2280, London, Ont. N6A 4G1 or fax 519-667-4528 or E-mail. Letters to the editor should be sent to

Copyright © 2002, The London Free Press.