Brad Wall to invoke notwithstanding clause to restore democracy

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Published: Monday, June 12, 2017, 8:39 am |   Author: National Affairs Rory Leishman

roryleishman1212Thanks to judicial distortion of the Canadian Charter of Rights and Freedoms over the past 30 years, freedom of religion in Canada has come under such severe restriction that an otherwise law-abiding, and conscientious citizen could now lose his livelihood or even end up in jail simply for steadfastly upholding the traditional principles of Judeo-Christian morality.

Faithful bakers, florists, printers and Christian organizations like the Knights of Columbus are well aware of this threat. Following a spate of rulings by Canada’s human rights suppression commissions and the courts, they are no longer free to govern their conduct by traditional Christian beliefs on marriage, sexuality and the sanctity of human life. Soon, some arbitrary judge is liable to ordain that a conscientious physician could be drummed out of the medical profession for refusing to collaborate in the deliberate killing of a vulnerable patient under the guise of medical assistance in dying.

Finally, Saskatchewan Premier Brad Wall is fed up with judicial arrogance and abuse. On May 1, he announced that his government would petition the Saskatchewan Legislature to invoke the notwithstanding clause in section 33 of the Charter to overturn an unprecedented recent judgment by Justice Donald Layh of the Saskatchewan Court of Queen’s Bench that prohibits government funding for non-Catholics to attend Catholic schools.

In reasons for judgment, Layh held that the guarantee of “freedom of conscience and religion” in section 2 of the Charter obligates the state to maintain strict religious neutrality except only for the privileges granted to certain Catholic and Protestant minorities by section 93 of the original Constitution of Canada Act in 1867. Yet, on the face of it, this conclusion is simply bizarre. There is no explicit reference to religious neutrality in any section of the Charter or even the entire Constitution of Canada.

Instead, Layh cited the ruling of the Supreme Court of Canada in Saguenay City, 2015, which read an implicit obligation to maintain religious neutrality into section 2 of the Charter as a reason for banning the traditional practice long predating Confederation of opening sessions of the municipal council with a Christian prayer. In reasons for judgment in Saguenay, Justice Clément Gascon candidly admitted: “Neither the Quebec Charter nor the Canadian Charter expressly imposes a duty of religious neutrality on the state. This duty results from an evolving interpretation of freedom of conscience and religion.”

Whose “evolving interpretation?” The court’s, of course. Neither Parliament nor the provincial legislatures have had any say in the matter. The transformation of “freedom of conscience and religion” in the Charter into a guarantee of freedom from religion on grounds of religious neutrality is entirely a concoction of our judicial masters on the Supreme Court of Canada.

Now Layh has cited Saguenay as a reason for striking down provisions of the Saskatchewan Education Act that authorize government funding for religious schools. In response, Wall has pointed out that if this judgment is allowed to stand, it would force about 10,000 non-Catholic students to leave Catholic schools in Saskatchewan this fall and compel many of these same schools in rural areas to close for want of sufficient students. In addition, Wall has warned that the ruling could jeopardize provincial funding for some 26 other faith-based schools in Saskatchewan including Luther College, Regina Christian School, Saskatoon Christian School, and Huda School.

By invoking the notwithstanding clause, Wall’s government does not just intend to prevent such a court-ordered educational catastrophe. According to Wall, it is also committed to “protecting the rights of parents and students to choose the schools that work best for their families, regardless of their religious faith.”

Good for Wall. But alas for former prime minister Stephen Harper: He failed during his tenure in office to invoke the notwithstanding clause of the Constitution to prevent the Supreme Court of Canada from resorting to evolving interpretations of the Constitution as a pretense for imposing same-sex “marriage,” overturning the prostitution laws, eviscerating the obscenity provisions of the Criminal Code, authorizing exhibitions of group sex in a nightclub, and legalizing euthanasia in defiance of the Court’s own precedents and the express will of our elected legislators in Parliament.

Let’s face it: We Canadians are now living in a veritable judicial dictatorship. There is no way to revive genuine democracy and the rule of law in this country until we have more principled politicians like Wall who are determined to prevent overweening judges from arbitrarily imposing their personal ideological preferences on the laws and the Constitution of Canada.

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