In many law cases, it is evident that some citizens have been denied these rights for the sake of group rights. In the case R. v. Children’s Aid Society of Metropolitan Toronto, a baby girl was born 4 weeks premature and physicians stated that to keep the girl alive, she may require a blood transfusion. Her parents, who were Jehovah’s witnesses, objected to this due their religion. Physicians avoided the transfusion as long as possible but eventually gave it to her to save her live. The issues faced were the freedom of religion and the parent’s right to choose medical care – rights to life and equality rights. The Supreme Court of Canada ruled wardship and transfusion infringed on parent’s freedom to choose medical treatment for her in accordance with their faith. However, the infringement was justified under section 1 of the Charter, stating that the Charter guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Although the law’s decision is justified in the Charter, it is still proving the rights of the parents were ignored, and their individual rights of freedom and expression of religion were not considered in the case.
Another example was a case, R. v. Glad Day Bookstore, which took place in 2001, in which some books with homosexual content were banned for being too inappropriate for the community. The owner at Glad Day, John Scythes, says his freedom of expression was being violated, and that they were being unfairly targeted for being a queer bookstore. Whilst under the Charter, every citizen has the right to a freedom of speech and expression, it is obvious the government is being biased towards minority groups and violating their individual freedoms.
In an article from the Globe and Mail (1999), Belinda Clarke, former prostitute, states that Canada’s ban of prostitution is violating her freedom of expression. She mentions that she should have the right to undertake any profession which she may choose, however she has not been granted this liberty. These cases evidently illustrate that everyone does not, in fact, have equal rights. It is apparent that the Charter is hindering their rule of equality and being discriminatory against minority groups; this, along with Judge Abella’s statement (2004) "the judiciary has a different relationship with the public…It is accountable less to the public's opinions and more to the public interest." Hence, it is more than apparent that the Canadian judicial system lacks the characteristics of a democracy.
Secondly, the fact that the members of the Supreme Court of Canada are appointed rather than elected by Canadian citizens shows that their judgement may not, in fact, be agreed upon by the country; thus, it does not demonstrate decisions being the true representation of people’s views. Although some people believe the courts appoint MPs based on knowledge and previous achievement, thus giving a good face to the system, this is not representing the country efficiently. Paul Martin, Canada’s Prime Minister, tried to revise the Supreme Court appointment system to make it more democratic than it previously was. Instead of appearing in front of a nominating committee, Justice Minister Irwin Cotler would take questions from a committee said to include three Liberal MPs, three opposition MPs and representatives from two bodies representing the legal profession. The panel would not vote or pass judgment on the qualifications of the nominees but would produce a report reflecting the opinions of committee members following their questioning of Cotler about the judges. By doing so, Martin feels the judgement will be more agreeable with public views; Judge Abella and Arbour were recently brought into the Supreme Court in this manner. Keeping in mind that the Supreme Court judges make moral decisions regarding public and private cases as well as the laws of the country, the fact that they are being made by people not according to society’s views, but that of the rest of the courtroom, shows that it is not the country’s opinions that are being characterized and thus the system is anti-democratic.
A case which applies is a euthanasia case, Rodriguez v. British Columbia (Attorney General), in which a 42-year old woman suffers from amyotrophic lateral sclerosis, which is a painful and incurable disease. Her life expectancy is between 2 and 14 months. The appellant does not wish to die so long as she still has the capacity to enjoy life, but wishes that a qualified physician be allowed to set up technological means by which she might, when she is no longer able to enjoy life, by her own hand, at the time of her choosing, end her life. Her condition is rapidly deteriorating and she will soon lose the ability to swallow, speak, walk and move her body without assistance. Thereafter she will lose the capacity to breathe without a respirator, to eat without gastronomy and will eventually become confined to a bed. The issues faced are the right to life and equality between the well and unwell. Statistics show that 61.6% (and rising) of Canada’s population believe euthanasia should be legalized, as it is discriminatory against the less capable. They feel that as suicide is legal, assisted suicide should be too, as it is similar, apart from the fact that the person is unable to kill themselves. Although the majority of the population strongly oppose the current law against assisted suicide, the Supreme Court of Canada believes the right to life should be upheld as long as possible and, in the poll between the 9 judges, the majority sided against public legalization. The population feel that had the members of the Supreme Court been selected on a more publicly accepted basis, their perspectives would be better seen and demonstrated in such authorized polls.
An aspect of Canada’s law history which has been under scrutiny has been its laws on abortion. In 1967, when abortions were illegal, it was stated that between 35,000 to 120,000 illegal abortions are taking place per annum, of which 5,000 to 10,000 women died. In 1969, the courts stated that if abortion was necessary, it could take place. However, this law was revised in 1989 and once again made illegal (ratio of 149:131 in the senate), regardless the number of deaths it would cause. In 1988, Dr. Henry Morgentaler was charged with procuring illegal abortions contrary to s.251 of the Criminal Code. Sources state that if judges were selected on a more moral basis, the public’s views would have been better addressed. Once again proving that if the Canadian judicial system was democratic and supported the views of the population, such issues and aspects as euthanasia and communal abortion clinics would be legalized, however they is not. If the citizens of Canada were able to elect the MPs based on each of their morals, the outcome of the law could have been different and have been a better representation of the populations’ viewpoint.
Thirdly, in order to represent Canada on behalf of the full population, the judgements made and the judges making them should not be biased in any way. In order to ensure this, visible minorities should be evident in the makeup of the Supreme Court; however, this is not the case. Some people say the monopoly of males of British and French descent has clearly been broken by L’Heureux-Dube, McLachlin, and Sopinka among the continuing members and by Iacobucci among the new appointees, along with Lousise Arbour, who took up her duties on September 1999, and brought the number of women on the Court back up to its Dickson Court high of three. However, what they fail to see is that the Reagan Administration had racked up just 4 women on its list of 84 federal court appointees. The Supreme Court of Canada is made up of 9 judges, all of whom are white. Canada takes great pride in its multi-culturalism, and if this is not represented in the apex of the Canadian judicial system, it is obvious that everybody’s viewpoints are not being expressed. An example of visible minorities not being present is the discussion about legalizing gay marriages in Canada. One of the judges admittedly mentioned that he was homophobic, thus having a huge impact on the decision made (seeing that there are only 9 judges). If minority groups were shown and expressed within the Supreme Court, the outcome of cases in which marginal opinions are faced would be much better represented and be more impartial to their individual values and beliefs.
Considering the three main aspects mentioned, it is more than obvious that Canada is in no way democratic. If the Supreme Court of Canada and the Charter of Rights and Freedom were democratic, they would be based upon the principles of social equality, however they are not. The Supreme Court will continue to use the Charter to cut a swatch through broad societal expectations and practises and in doing so will make the general progress towards its decisions but not necessarily for each and every individual decision. The fact that the Canadian judicial system: allows the rights of a group to always supersede the rights of an individual, appoints the members of the Supreme Court and does not put emphasis on visible minorities in its’ courts, forcefully proves its anti-democratic characteristics. Some mention that the Supreme Court is democratic because they follow the laws of the Charter, however, the cases mentioned above, along with many other cases which have been examined, prove that each citizen does not, in fact, have equal rights; this therefore substantiates that Canada does not possess the characteristics of having a democratic judicial system and, thus, is strongly anti-democratic.
Bibliography
Articles
“Gay-book sellers battle in Supreme Court case; Customs agents blasted for harassment.” The Globe and Mail, 2000.
“In the courts: B. (R.) v. Children’s Aid Society of Metropolitan Toronto.” The Globe and Mail, 1992.
Books
Eberts, Bayefsky. Equality Rights and the Canadian Charter of Rights and Freedoms. Toronto: Canadian Cataloguing, 1985.
McCormick. Supreme at Last. Toronto: James Lorimer & Company LTD. Publishers, 2000.
Peacock, Anthony A. Rethinking the Constitution. Toronto: Oxford University Press, 1999.
Internet
“Abortion Statistics Canada.” June 2002. 1 December 2004
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Arthur, Joyce. “Abortion in Canada.” October 1999. 20 November 2004
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Arthur, Joyce. “History of Abortion in Canada.” October 2000. 1 December 2004.
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“Canadian Charter of Rights and Freedoms.” 1999. 20 November 2004
<http://laws.justice.gc.ca/en/charter/>
“Canadian Legal Information Institute.” 2004. 1 December 2004
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“Doctor's Prescription - Euthanasia survey - Brief Article.” 1 Nov 2002. 18 November 2004.
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“First Supreme Court appointment hearings coming.” 21 August 2004. 4 December 2004.
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Gunter, Lorne. “Stacking the Court with Activists.” 2001. 20 November 2004
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“Opening and closing exercises in public elementary and secondary schools." 1998. 19 November 2004.
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"Regulation to amend Regulation 262 of Revised Regulations of Ontario, 1980 made under the Education Act.” 2000. 2 December 2004.
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“The Number War – Abortion Statistics.” 1998. 28 November 2004.
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“In the courts: B. (R.) v. Children’s Aid Society of Metropolitan Toronto,” The Globe and Mail, 1992.
. Updated Wednesday 25 August 2004.
. Updated 15th July 2001.
. Updated 15th July 2001.
. Updated 15th July 2001.
Peter McCormick, Supreme at Last (Toronto: James Lorimer & Company LTD. Publishers, 2000).
. Updated 2000, The Feminist Majority Foundation.
