A post-Charter Canada?

Was Canada’s 1982 Charter meant to condemn the Bible as hate literature or to undermine child pornography sentencing? Like it or not, that’s where post-Charter Canada is headed.

For Halloween, the black-robed justices at the Supreme Court of Canada ruled that one-year mandatory sentences against accessing or possessing child sexual abuse and exploitation materials represented “cruel and unusual punishment.” The decision affirmed a previous ruling from the Quebec Court of Appeal.

A 5-4 majority struck down the law based on this hypothetical scenario: if an 18-year-old received a sexually explicit image from their 17-year-old girlfriend, that would technically be child porn. If the recipient was prosecuted, he could get a one-year minimum sentence. For that reason, judges rejected the minimum sentence law entirely.

However, the case at hand was more disturbing, as two Quebec men consumed the clear products of abuse. One man had 317 unique images of child porn, with 90 per cent of them showing girls aged three to six years old involved in penetration and sodomy by adults or other minors. The other had 531 images and 274 videos, mostly of girls aged five to 10, engaged in sexual acts, including anal and vaginal penetration and some that involved multiple children.

The former received 90 days of intermittent imprisonment for each count (served concurrently) and 24 months of probation. The latter received nine months imprisonment, plus 24 months of probation. How is this okay?

Remarkably, one insightful lawyer saw this dark day coming long ago. Daniel A. Lang, a Liberal campaign chair appointed to the Senate by Lester B. Pearson, warned of the Constitution’s negative potential during debate on April 23, 1981.

Lang saw how the U.S. Constitution had been used to curb decency laws in the U.S. and predicted a similar fate for Canada. He said a flood of future court cases could challenge laws on “obscenity, pornography and freedom of speech,” potentially resulting in the “negation of federal or provincial legislation.”

Such dark days have come. Elected officials must reinstitute a new minimum sentencing law that excludes the obscure scenario that judges used to strike down minimum sentences. Parliament may do so because of the “notwithstanding clause” of Section 33. This allows elected officials to institute laws with a five-year expiry date that defy the rulings of judges.

This is a helpful provision. British common law developed through the conventions of society grown over tradition and centuries of precedents and interactions. In the Westminster (British) tradition, of which Canada is a part, parliament rules–not judges. Section 33 maintains that.

If a government using Section 33 really makes the wrong take on an issue, they risk losing power at the next election. At that point, the new government can either put in new legislation in line with the judges’ rulings or let the old legislation expire by itself. That’s a good balance for a democracy like Canada’s.

Last month, the Carney Liberals sent a reference question to the courts calling for new limits to how legislatures can use the section. Five premiers wrote Carney to protest. Former Newfoundland and Labrador premier Brian Peckford, the last living signatory to the agreement that resulted in the 1982 Constitution Act, has publicly condemned the attempt as wrongful.

Unfortunately, the judges will probably say yes to the newly proposed limits. Why would they refuse an opportunity to curtail any chance of elected governments to get around their rulings? Telling parliamentarians their laws are wrong, overturning them, and forcing changes has been the Supreme Court’s favourite activity for the past 40 years.

Instead of committing to reinstate minimum sentences on child porn, the Liberal Carney cabinet has different priorities, such as prosecuting Bible believers for alleged hate.

The quiet part was said out loud by lawyer Marc Miller, former minister of immigration and citizenship and chair of the Parliamentary Human Rights Committee. On Oct. 30, he told the committee, “In Leviticus, Deuteronomy, Romans – there’s other passages – there’s clear hatred towards, for example, homosexuals.”

Miller added, “There should perhaps be discretion for prosecutors to press charges…[T]here are clearly passages in religious texts that are clearly hateful.”

Well, that’s Miller’s opinion. Instead of Bible thumpers, we have Charter thumpers–people who interpret their “sacred” document to fit their own beliefs, then use it to whack their ideological opponents. When wokeness becomes dogma, disagreement becomes heresy. And we know what happens to heretics.

Any country that lets child porn lovers off easy while it hunts down Bible believers for fines and prison sentences has completely lost its way. Most Canadians wouldn’t want this, but its rulers do, both those in the cabinet and on the judges’ bench. A dark shadow is upon us.