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No Agreements Are Safe From Judicial Activism

Tue, August 04, 2020   |   Author: Rod Taylor   |   Volume 27    Issue 31 | Share: Gab | Facebook | Twitter   

As Canada descends further down the road of judge-made law, a Federal Court judge has once again imposed her opinion on the country. After all, why shouldn’t an unelected judge change the rules for 37 million Canadians and their 338 elected MPs? We should be getting used to it by now. International agreements are not exempt from judicial tampering. A federal court has now declared Canada’s Safe Third Country Agreement with the United States to be “unconstitutional”. That’s code for “I don’t like this law; get rid of it”.

Thanks to serial judicial activism at the Supreme Court and the lower courts, we now have abortion-on-demand throughout every stage of pregnancy up until the moment of birth, same-sex marriage, medically-assisted suicide, and restrictive limits on free speech. Courts make their rulings, throw out laws they don’t like, “read into” the Charter words that they like—without going through the approved process—and generally redraw public policy to suit their own opinions.

On July 22, 2020, Federal Court Judge, Ann Marie McDonald, declared the Safe Third Country Agreement to be unconstitutional. She did not like the fact that illegal border-crossers could be sent back to the US as long as they were not in danger of torture or execution. The Safe Third Country Agreement—referred to as STCA—declares that people who show up at our borders claiming refugee status must actually be refugees. They must show that they are fleeing from a country where they are at risk of persecution, torture or death. When the Agreement came into effect on December 29, 2004, Canada and the US mutually recognized each other as civilized countries where people are not arbitrarily tortured or executed.

In recent years, under our current government, illegal border-crossers, “undocumented migrants” as some like to call them, have increasingly been given a hospitable welcome in Canada, with generous provision of lodging, transportation, healthcare, meals and assistance in becoming permanent residents—much to the frustration of those who have actually followed proper procedures for entry into Canada. The motives of the Trudeau government for pandering to and pampering illegals are certainly suspect. Many think the PM views the flood of immigrants and refugees as simply a source of Liberal-voters-in-training (like the graduating classes of most public high schools and universities).

In fact, the opinion of the judge who ruled in this case may be partially due to a general distaste and distrust for America under President Donald Trump. The narrative that the US can no longer be considered a “safe” country is ridiculous. The fact that Americans want to defend their borders from illegal border-crossers is no surprise; that should be the policy for any sovereign nation. As in the US, so also in Canada, there are those who oppose any restrictions on the free movement of people across borders (mass migration). The arrest and detention or eviction of those who have entered without permission is not “persecution”. It’s simply the application of due process and the rule of law.

Another question raised by this judgment has to do with the scope of protection offered by Canada’s Charter. The logical view of the Canadian Charter is that it applies to citizens and legal residents of Canada, not to every person on the planet. To grant Charter protections to every person who manages to reach Canada’s soil—legally or illegally—would seem the height of foolishness. The reason for defining refugee status is to identify the circumstances that qualify individuals to receive the exceptional compassion of a civilized nation-state. Those walking across the border from the US to Canada (or vice-versa) are not people fleeing machine guns, beheadings and lashings.

Under the STCA, true refugees from any country are supposed to declare their refugee status in the first safe country they reach, not the country that they think would be a preferable place to live. Around the world, many people would like to move to Canada for better job opportunities, education, or to benefit from our universal health care system. That does not make them refugees. To pass through another country on their way to Canada without claiming refugee status in the first safe country they enter raises questions about their motives. It suggests that they may not have an airtight case for their claim of refugee status or that they think Canada is more likely to rubber-stamp their application. Or they prefer our universal health care to the US model.

My concern with this court ruling is two-fold. First, I think a further weakening of our border protection will be damaging to Canada’s best interests. Yes, we are a nation of immigrants and our farms, cities and industries have been built by those who have come to our shores seeking a better life. In today’s climate of geopolitical turmoil, social unrest and moral collapse, the undermining or dilution of Canada’s great Judaeo-Christian heritage can only hinder our ability to protect personal freedom and to instil a sense of creative, courageous responsibility in our young people. Our immigration policy should be based on merit and our refugee policy on need.

My second concern is with the manipulation of our system of laws, of rights and freedoms, by those sworn to protect them. The casual use of the courts to achieve ends that cannot be obtained by elected representatives is a systemic failure and one that has fundamentally warped the nature of our country. The Bible says “the fear of the Lord is the beginning of wisdom”; in Canada today, the fear of the courts is the beginning of moral failure and compromise. Legislators sometimes draft their bills based not on what they think the law should be, but on what they think will survive a court challenge. Why bother to elect 338 MPs if the courts are going to have the final say?

Since courts seem to be treated reverentially as the last deposit of sagacious wisdom, predicting their response on any given topic is difficult. It’s becoming less difficult to predict the response of the government to a new court ruling. Complacent acceptance of a judge’s order is the norm. The Canadian government has never once exercised the notwithstanding clause. Not to defend human life, traditional family values, or common-sense border policies. It’s time they did so. Courts are to interpret the law as it is written, not to rewrite it at will.

The Christian Heritage Party believes that Canadian law should be written by those elected to represent us and in accordance with Canada’s deep moral traditions. Justice is not achieved by subjecting Canadians to the whims of an unelected judge. Join us in our quest for justice and good government at

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