Chris Albinati makes an important point in his recent letter (Access To Justice A Necessary Right, The Daily News, Oct. 24). However, he also misses an important point having to do with the determination of law in our justice system.
Parliamentary sovereignty held sway in Canada for more than a century. It came to an end in 1982 with the enactment of the Canadian Charter of Rights and Freedoms. This Charter has set loose on the country judicial activists (particularly in the Supreme Court) bent on revolutionizing Canadian society.
Our original constitution was provided by the British North America Acts. It was about rules governing the structure of government and the division of powers between the central and the provincial governments. There was no bill of rights included, and no mention of equality of persons or regions. The rights and freedoms were understood as being based in British common law (existing since the 12th century) and not in any written code or charter. The only notion of equality in our original constitution was in the idea of equality of all citizens before the law.
By establishing code law in the Charter in 1982, the British common law constitution of Canada has been overturned and replaced by judicial interpretations of the meaning of the equality provisions of the Charter of Rights and Freedoms. This has produced an attack on the voluntary associations found within our society (families, churches, clubs, sports teams, etc.) by finding their exclusionary provisions (which are their reason for being) to be unlawful under the Charter’s equality requirements. Marriage has been defined throughout history to involve the union of a man and woman. This excludes same-sex unions and that exclusion has been found to be unlawful by the Supreme Court under the equality and anti-discrimination provisions of the Charter. The supreme law of our land for more than a century was based on parliamentary sovereignty and the common law.
With the Charter, and the provision that any law that is inconsistent with it (as interpreted by judges) is of “no force and effect,” parliamentary sovereignty has been replaced by judicial sovereignty.
Instead of the supreme law of the land being made by people we elect (and can get rid of), it is now being made by unelected elites over whom the citizens of Canada have no control. The problem with this form of government through law-making is its anti-democratic nature.
Our country has been taken over by a judicial aristocracy rather than remaining in democratic control. Our law should be made by our elected representatives in government not by unelected judges. It should be understood that the role of judges is to interpret the meaning of parliamentarians in the laws they provide. The role of judges should not be to make the law.