The Rule of Law and Faith in the Judiciary are Diminished When Judges Become Historians and Social Issues Partisans.

In its March 2024 decision,R. v. Kruk, a rape case,the Supreme Court of Canada unanimously ruled that it is “unfortunate” for any Canadian court to use the word “woman”. Rather, the Court clearly implied, giving no explanation, that the better term for Canadian courts to use in future is “person with a vagina,” presumably to include biological men who identify as female, go through a sex-change operation, and end up having a vagina (of some sort).

The Court came up with this human history-dismissive, human culture-dismissive and human instinct-dismissive pronouncement on its own.

(How dismissive of universes of human reality! How dismissive of the thoughts and feelings- of the very lived lives– of the vast majority of Canadians!)

This was an appeal, and the two courts appealed from – a B.C. trial court and the B.C. Court of Appeal- routinely used the word “woman” throughout their decisions on the issue of whether a certain “man” was guilty of raping a certain “woman.” Making this radical “gender neutral-non-binary” pronouncement was not necessary for the Supreme Court’s ruling.

What the Supreme Court was doing was, entirely on its own initiative, (in legal parlance, engaging in a “frolic of its own”), improperly wading into the highly disputed and publicly controversial, political world of gender self-identity vs. the realities of biological sex difference, and siding with the gender self-identity side, which represents less than 1% of the Canadian population.

Ironically, the author of the decision, Justice Sheilah Martin, recently said in a public speech that Canadians “must be able to recognize themselves in the justice system without feeling that they’ve been marginalized or excluded.”

Yet marginalized and excluded is precisely how the vast majority of ordinary Canadians are being made to feel about the justice system because of judges, like Justice Martin and her dehumanizing “person with a vagina”pronouncement about half of the human race, both in and out of court making “unrecognizable”, legally unnecessary and very questionable statements about complex, highly disputed and publicly controversial historical and social matters.

Article 4.B.1. of the Ethical Principles for Judges states, amongst other things:

“Inappropriate statements by judges, in or out of court, have the potential to call into question their commitment to equality and their ability to be impartial.

There are only limited circumstances in which a judge may speak publicly, not through their judgments.

Speaking in public carries risks to the public perception of the judge’s impartiality and must be approached with care.”

Article 5.B.6 of the Ethical Principles states:

 “There are limited circumstances in which judges may properly speak out, though with restraint, about a matter that is publicly controversial, namely, when the matter directly affects the operation of the courts, the independence of the judiciary or fundamental aspects of the administration of justice.”

In 2020 Supreme Court of Canada Chief Justice Richard Wagner was asked if there is systemic racism in Canada’s justice system. In accordance with the Ethical Principles, he properly declined to make such a definitive statement.  He said it’s the job of judges to “weigh the facts in individual cases and speak through their judgments, while it’s up to elected officials and others to make more broad statements.”

Judges are mere human beings, and like all humans, outside the facts and law properly put before them in the cases they are called upon to judge, their opinions on historical and social matters are irrelevant and should be kept to themselves.

As Justice David Stratas of the Canadian Federal Court of Appeal puts it:

“We [judges] are not a roving commission of inquiry able to investigate whatever we wish … we are not high priests who can attribute values, judge what is ‘just,’ ‘right’ and ‘fair’ and give benediction to our personal beliefs.”

And, as former Justice of the United States Supreme Court Stephen Breyer said recently, warning Americans about the ultra-conservative direction being taken by the Supreme Court there,  judges “may not be qualified to be historians” and that when they purport to be so “they are abdicating their judicial role”.

Yet increasingly our Canadian courts, led by the Supreme Court of Canada, violate these ethical principles, but, in contrast to the American Supreme Court, usually in a leftward “progressive” direction. This results, as in America, in the diminishment of the appearance of impartiality and commitment to equality under the law of the country’s justice system, and its institutional delegitimization.

This harmful trend of judges improperly taking sides on political and publicly controversial historical and social matters was started in 2013 by Supreme Court of Canada Chief Justice Beverly McLachlin, who, in an after dinner speech, said that Canada attempted to commit “cultural genocide” against Indigenous peoples.

The damaging consequences of this false, insulting, broad public statement -the reasonable apprehension of bias and the appearance of compromised judicial impartiality in Indigenous rights cases- are still being experienced today.

In the 2021 Supreme Court of Canada decision R. v. Desautel, where the court granted Haida Nation “consult and accommodate” Aboriginal  rights to certain non-resident, American Indians, the court wrongly pronounced as historical fact:

Aboriginal peoples were displaced physically — they were denied access to their traditional territories and in many cases actually forced to move to new locations selected for them by colonial authorities. They were also displaced socially and culturally, subject to intensive missionary activity and the establishment of schools — which undermined their ability to pass on traditional values to their children, imposed male-oriented Victorian values, and attacked traditional activities such as significant dances and other ceremonies. In North America they were also displaced politically, forced by colonial laws to abandon or at least disguise traditional governing structures and processes in favour of colonial-style municipal institutions.

(Report of the Royal Commission on Aboriginal Peoples, vol. 1, Looking Forward, Looking Back (1996), at pp. 139-40)”

These are false, simplistic, context and nuance-free, publicly controversial historical statements, unnecessary to the conclusion the court reached in the case, based on a 1997 Royal Commission Report that, so biased, untrue and unrealistic were its observations and conclusions, it was shelved immediately upon receipt.

In 2022, the same Chief Justice Wagner who cautioned judges against making broad public statements about controversial political matters publicly characterized the Ottawa convoy protests in a press interview as “the beginning of anarchy where some people have decided to take other citizens hostage.” He further declared that “forced blows against the state, justice and democratic institutions like the one delivered by protesters … should be denounced with force by all figures of power in the country.”

Court cases arising out of these illegal protests will likely be coming before Chief Justice Wagner’s Court, which, in terms of being able to maintain its appearance of impartiality and equality under the law when hearing them, has been fatally checkmated by Justice Wagner’s own unethical out of court statements.

This Supreme Court judicial irresponsibility and seeming indifference to the feelings and perceptions of ordinary Canadians has seeped down into the lower courts, which are now making similar, legally unnecessary, insulting statements about complex and publicly controversial historical and social matters. This is having the effect of further compromising the Canadian justice system’s necessary appearance of impartiality and commitment to equality under the law.

In his reasons judicially approving the Indigenous class action clean water settlement Mr. Justice Favel of the Federal Court of Canada, expressly agreed with, and made it the court’s own, the patently false, broad political statement of Marc Miller, Minister of Indigenous Services, that: “The deficits pertaining to drinking water infrastructure on reserves are a result of systemic racism. (Italics added.)

The Federal Court of Canada, through Justice Favel, (a member of the Poundmaker Cree First Nation at the time and thus being in a conflict of interest), eschewing the wise and humble words of Justice Stratas, has judicially declared that Canadians and Canadian governments have been and are “racist” towards Indigenous peoples.

In a pre-trial decision in the Ontario Restoule case the trial judge falsely, casually and without citing any supporting evidence wrote that Indigenous peoples have a “rational distrust” of the Canadian justice system, (when in fact it is biased in their favour.)

With that kind of comment being made, the lawyers for the defendants in the case, Canada and Ontario, had to know before the trial even started where the judge’s sentiments about the merits of the case were going to lie. These feelings of being the subject of judicial bias and of being unequal before the law are what the Ethical Principles are designed to avoid.

In November of 2021 then Chief Justice Robert Bauman of the Court of Appeal of British Columbia and the Yukon told a legal conference in Vancouver that non-Indigenous governments’ had a “jealous need for control”, which was  “destructive” to Indigenous peoples. He referred to the ancestors of non-Indigenous Canadians as “uninvited guests” in Canada.

Everything Chief Justice Bauman said constituted false, unnecessary, insulting to Canadians past and present, broad political opinions that, if they had to be made by a judge at all, should only have been made in a legal judgment at the conclusion of a legal case based solely on evidence properly before the court in that case.

Like with Justice Wagner and his public convoy statements, the problem is not that what Chief Justice Bauman said was true or false. The problem is that he said these things at all. It’s neither his business, nor that of his court, nor of any court, to gratuitously opine in either public speeches or their court judgments on such political and publicly controversial historical and social matters.

The Supreme Court of Canada is mainly to blame for this dangerous trend, which is resulting in Canadians’ losing faith in the impartiality of the justice system and its commitment to equality under the law.

And judging by the Supreme Court’s 2024  Reference re An Act respecting First Nations, Inuit and Metis children, youth and families decision, by which the Court granted to Indigenous groups quasi-property rights in their at-risk children, the situation is getting worse.

In this decision, the Court, acting as omniscient historians, wrongly pronounced to be historical fact that:

“For most of Canada’s history, lawmakers have wrongly employed a policy of assimilation aimed at “lifting (Indigenous peoples) out of (their) condition of tutelage and dependence…and preparing  them for a higher civilization”…This history, which includes the residential schools policy, the “Sixties Scoop” and the harm and intergenerational trauma that resulted therefrom, is detailed in several reports published in recent decades…The effects of these government policies are still being felt today. “In tandem with the residential school system, the child welfare system…became a site of assimilation and colonization by forcibly removing children from their homes and placing them with non-Indigenous families.” (emphases added)

The Court also wrongly pronounced as a historical fact that:

“It is no coincidence that the Crown targeted Indigenous children when, at the height of its imperialism, it was seeking to destroy Indigenous cultures.” (emphases added)

It’s not the business of the Supreme Court of Canada to sweepingly opine on the morality or rightness of “most of Canada’s history” (!) or on issues so historically complex, nuanced and political and publicly controversial as residential schools, the “Sixties Scoop”, “colonization” and “imperialism”.  

Its role is solely to, as narrowly as possible, adjudicate the legal cases that come before it, based solely on the evidence properly adduced at trial in those cases.

Wokism, connoting the promotion of pseudo-progressive ideology and policy, (but in fact illiberal policy), as an expression of sensitivity to systemic injustices and prejudices, has captured the collective mind of the Supreme Court of Canada and is infecting all the courts beneath it.

Recent studies show that the promotion of wokism  has the opposite effect than that intended. A resentful backlash happens, which is what is happening with our justice system.

Canadians don’t like to be told by privileged and cosseted judges, who are seeming to be “too high learnt to have much common sense”, (George Eliot), that, contrary to the entirety of human history, women should now be referred to as “persons with vaginas”, and that they and their ancestors are all part of a genocidal, “systemically racist”, colonialist, land-theft project designed then and now to inflict harm on our Indigenous fellow citizens.

Despite our Supreme Court’s relentless, baseless and gratuitous insults towards Canadians and to our past, Canadians have every reason to be proud of both the history of Canada, which, as it relates to Indigenous peoples, is a relatively conscientious and honorable one, and of the present state of Canadian society, which is marked by, amongst other positive qualities, the highest degree of racial decency and ameliorative efforts exhibited towards Indigenous peoples.

All members of the Canadian judiciary need to re-read the Ethical Principles, and, keeping the humble, cautionary words of Justice Stratas in mind, re-commit to more strictly adhering to them in relation to what they say and write, both in and out of court, about political and publicly controversial historical and social matters.

The judiciary must retreat back into the respectable shadows of traditional, apolitical, judicial conduct.

But this would not really be a retreat.

Rather, it would be a great advance towards a situation where the vast majority of Canadians would be able to once again, as Justice Martin rightly hopes, “recognize themselves” in the justice system.

It would also be a great advance towards Canadians seeing the goal of equal treatment under the law regardless of race as being a reflexive primary value and goal of the justice system.

Finally, it would be a great advance towards the restoration of a justice system that is not only impartial but is manifestly seen to be so.

Peter Best, Sudbury

March 24, 2024

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