Coercing Virtue (10 page)

Less encouraging was the Chief Justice’s reliance on international human rights principles in assessing the legislative objective. It is uncertain to what degree legislators were motivated by consideration of the various documents enunciating those principles. A more fundamental objection is that, as we have reason to know, international declarations – in the United Nations, for example – are often so vague as to provide little guidance in actual cases, yet are quite as capable of being politically motivated and pernicious as they are of being humane and balanced. The opinion also cites a welter of academic writings in support of such legislation, thus explicitly endorsing New Class views. Judges ought to be wary of the literature produced by writers from the generally leftish academic world.

That element suggests a danger in the
Keegstra
ruling. Given the virulence of “political correctness” in the academic world, and in much of the New Class, it may be that the criminal law will come to be used to stifle even legitimate discussion of group and cultural differences. Those topics are necessarily central, for example, to any intelligent debate about immigration policy. Yet in many quarters such debate is now stamped as intolerably racist
or hostile to particular ethnic groups. It remains to be seen whether prosecutors and courts will continue to resist this New Class trend and to maintain the distinction, sometimes subtle, between hate speech and legitimate discussion of group differences. If they cannot, it may turn out in the long run that the U.S. courts were inadvertently wise to back away from
Beauharnais
and to refuse to judge speech by its content.

The
Keegstra
opinion exemplifies an unfortunate characteristic exemplified in the constitutional opinions of almost all nations: complexity and length. There is no occasion here to discuss all the sub-issues the opinion addresses or the excruciating detail in which every issue and sub-issue is considered. Such opinions will not be read by the general public; they are useful almost solely to those whose professional preoccupation they are. The United States public has almost no idea what is in its Constitution, much less the doctrines of the Supreme Court, and there is little doubt that the Canadian public is similarly ill-informed. For the public at large, lengthy and tedious opinions tend to conceal, rather than to illuminate, constitutional reasoning.

Though the decision in
Keegstra
was split, the Court had no difficulty in
The Queen
v.
Sharpe
(2001) in finding unanimously that the prohibition of the “expression” embodied in child pornography was justified under section 1 of the
Charter
. Commercial speech was protected in
RJR–MacDonald Inc
. v.
Canada (Attorney-General)
(1995), holding, by a five-to-four vote, that the restrictions on tobacco advertising, promotion, and labeling
contained in the
Tobacco Products Control Act were
not justified under section 1. This decision was greater protection of commercial speech than the U.S. Court has granted, though it is difficult to compare the decisions in the two countries because the American interpretation of the First Amendment in this context suffers from a longstanding judicial practice, only recently repudiated in part, of deferring to legislative regulation of commercial speech. To the degree that a central function of free speech is the search for truth, not just political truth but any social truth, the rationale and the history of the founders’ respect for commercial speech argue for greater protection than has been accorded in the United States. Tobacco is undoubtedly a danger to health, but users know the possible consequences of their choice, and tobacco has other attributes – such as giving pleasure to individuals – and it hardly creates the same social dangers as hate speech or child pornography.

Religion is another area in which the Canadian Court differs from the U.S. Court. Canada shows none of the savage antagonism about religious questions that characterizes American constitutional law.
The Queen
v.
Big M Drug Mart Ltd
. (1985), a case over retail trading on Sunday, did not denounce any public recognition of religion, though it struck down the
Lord’s Day Act
, a Sunday closing law, which made most forms of work and commercial activity on that day criminal. Justice Dickson, for
the Court, reasoned that the Act violated section 2(a)’s guarantee of freedom of conscience and religion, which included nonbelief, because the Act coerced individuals to affirm a specific (Christian) belief. Resort to section 1 was unavailing. The first argument advanced, that the choice of day of rest adhered to by the Christian majority is the most practical, was “fundamentally repugnant because it would justify the law upon the very basis upon which it is attacked.” The second argument, that the day of rest chosen might as well be the one traditionally observed, was rejected because it assigned a nonreligious motive to the legislature which was contrary to fact.

Jones
v.
The Queen
(1986) upheld the conviction of the pastor of a fundamentalist church for violation of the Alberta
School Act
because he refused to send his children to public school and refused to seek the exemption provided if an appropriate government official certified that a pupil was receiving efficient instruction at home or elsewhere or if the pupil was attending a private school approved by the Department of Education. The Act was said to constitute some interference with freedom of religion, but did not infringe section 2(a) because alternatives were provided. Section 1 was of no avail to the pastor because the province’s compelling interest in the adequate education of the young meant that the law was demonstrably justified in a free and democratic society. The result seems quite correct.

Though the claims of religion lost in
Big M Drug Mart
and
Jones
, those claims were treated respectfully and without the hyperventilation that the U.S. religion opinions
often display. Often enough in Canada, moreover, the appeal to religious freedom prevails.

In
British Columbia College of Teachers
v.
Trinity Western University
(2001) the Court faced the necessity to resolve a conflict between two values, one explicitly found in the
Charter
and the other of its own creation. The conflict was between religious freedom and the preferred status the Court had created for homosexuals. Trinity Western University is a private institution associated with the Evangelical Free Church of Canada. It sought to have its students sign a “Community Standards” document agreeing to refrain from all biblically condemned practices, including drunkenness, profanity, abortion, premarital sex, adultery, and, the crux of the case, homosexual activity. The College of Teachers refused to accredit the university’s education program on the grounds that it was discriminatory, rendering its students unfit to teach in the public school system. The university sued and the Supreme Court, dividing eight to one, ordered the College of Teachers to accredit the program.

The Court rejected the argument based on the equality rights of section 15: “To state that the voluntary adoption of a code of conduct based on a person’s own religious beliefs, in a private institution, is sufficient to engage s. 15 would be inconsistent with freedom of conscience and religion, which co-exist with the right to equality.” The College of Teachers could appropriately consider equality rights, but it was also required to consider, as it had not, the right of religious freedom. Neither right is absolute. “TWU’s Community Standards, which
are limited to prescribing conduct of members while at TWU, are not sufficient to support the conclusion that BCCT should anticipate intolerant behavior in the public schools. Indeed, if TWU’s Community Standards could be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church.”

This is obviously not a case in which religious beliefs always trump the protection of homosexual conduct. Yet, given the American Supreme Court’s hostility to religion and solicitude for homosexuality, it is easy to think the decision might well have gone the other way in the United States.

Abortion occupies an identical position in the Canadian
Charter
and in the American Constitution: both documents are silent on the issue, leaving the dispute between the opposing forces for resolution in the political arena. Section 7 of the
Charter
, which protects the right to life and the right to liberty, can be appealed to by both the anti-and the pro-abortion factions. From the beginning, then, the Supreme Court should have stated that neither provision was enacted with abortion in mind, and that the
Charter
, having deliberately avoided the issue, had nothing to say and so the issue must remain with the legislature. In Canada, however, the anti-abortion side actively but futilely sought a Court ruling that the “right
to life” guaranteed in section 7 of the
Charter
banned abortion. In the United States, pro-abortionists aggressively sought a ruling that abortion is a constitutional right and achieved victory in 1973 in
Roe
v.
Wade
. Anti-abortionists’ argument that abortion is forbidden by the guarantee against the deprivation of life without due process of law in the Fifth and Fourteenth amendments has, predictably, met with no success.

The outcomes have been similar in Canada and the United States because feminists and their New Class allies in both countries overwhelmingly support abortion rights. Given the judicial identification in both countries with those groups, the pro-abortion side has won. The political response to the judicial encouragement of abortion has not been as different in Canada and the United States as might have been expected, given the
Charter’
s notwithstanding clause – which, theoretically, is much more easily invoked than the American Constitution’s difficult procedure for securing an amendment. Yet the capacity for effective political response in the two countries is about the same: nil. Once a supreme court has spoken, creating what it chooses to call a constitutional right, the psychological advantage swings, usually decisively, in favor of a position that had previously been unable to prevail in the legislature. Unless the government, national or provincial, is determined – unless restoring the previous position, the
status quo ante
, is an important part of its agenda (which in the case of abortion it never is) – the notwithstanding clause will remain unused and the pro-abortion forces will have won what
they could not previously persuade the people and the legislature to accept. As a result, the number of abortions in Canada rose substantially, just as after
Roe
the rate increased spectacularly in the United States.

Knopff and Morton attribute the Canadian Court’s altered willingness to accept the pro-abortion decision to more than the replacement of Canada’s statutory
Bill of Rights
by the
Charter of Rights and Freedoms
. The latter, after all, was silent, and deliberately so, on the issue of abortion. The change by the Court, they point out, was due to the dramatic change in the social and political climate. Radical feminism had emerged as a major force in Canadian politics, and women secured seats on the Supreme Court as well as much greater participation in the legal profession. This is not to say that women are uniformly pro-abortion, but the women entering the legal profession, having attended university and law school, were members of the New Class, and they heavily favored abortion rights. In Canada as in America, immersion in higher education these days produces a pronounced swing to the cultural left.

In
Morgentaler, Smoling and Scott
v.
The Queen
(1988), four of the five Justices in the majority found procedural deficiencies in the statute regulating abortion, but Justice Wilson wrote that it would merely be a waste of Parliament’s time to address procedures because women have a substantive right to abortion. She ignored the legislative history of section 7, perhaps because that history tended to contradict the position she espoused. In language remarkably similar to that of the American Justices
Blackmun (in
Roe)
and Brennan (in the contraceptive case,
Eisenstadt
v.
Baird
[1972]), and the joint opinion of O’Connor, Kennedy, and Souter (in
Planned Parenthood
v.
Casey)
, she argued that section 7 promoted “human dignity and worth,” guaranteeing “a degree of personal autonomy over important decisions intimately affecting their private lives.” Like the American judges, Justice Wilson was unconcerned with what the persons who adopted the
Charter
understood themselves to be doing. Acknowledging that Parliament had an interest in protecting the fetus in the later stages of development, she offered her personal opinion that Parliament’s power might become legitimate “somewhere in the second trimester.”

Justice McIntyre dissented, saying “when in the name of constitutional interpretation, the Court adds something to the Constitution that was deliberately excluded from it, the Court in reality substitutes its view of what should be so for the amending process.” That statement seems undeniable.

The anti-abortion forces proved equally ready to use the
Charter
for purposes it was not designed to encompass. In
Borowski
the plaintiff wanted the courts to declare that the same statute stricken in
Morgentaler
outlawed all abortions because of section 7’s protection of “everyone” as entitled to life. But since the prior case had invalidated the statute, the Court, after hearing argument and a considerable subsequent delay, announced that the present nonexistence of the statute rendered Borowski’s claim moot. Justice Sopinka’s opinion for the Court said, with respect to standing, that it was sufficient that a plaintiff
show that “he has a genuine interest as a citizen in the validity of the legislation” he challenges. In a word, ideology will suffice. Mootness, he said, requires that there be “no present live controversy” which “affects the rights of the parties.” But “[t]he general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice.” “Discretion” seems to be a synonym for lawlessness.