Supreme Court of Canada gets political

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Supreme Court of Canada gets political

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On March 8, 2024, in the case of R. v. Kruk, no fewer than five Supreme Court Justices endorsed the opinion of Justice Sheilah Martin, who insisted on referring to a woman, the victim of a sexual assault, as “a person with a vagina.” Lest there be any doubt that this was not some accidental slip of the pen, Justice Martin goes on to write: “While the choice of the trial judge to use the words ‘a woman’ may have been unfortunate and engendered confusion, in context, it is clear the judge was reasoning that it was extremely unlikely that the complainant would be mistaken about the feeling of penilevaginal penetration because people generally, even if intoxicated, are not mistaken about that sensation.”

Of note, R. v. Kruk was not a case where the female complainant or the male accused claimed to be transgender, or where gender identity or gender expression was an issue before the court. It was a straight-up, all-too-common and very sad case of sexual assault. Yet somehow, for reasons that defy comprehension, the highest court in the land deemed it necessary to refer—on International Women’s Day—to a woman as “a person with a vagina.” How degrading.

Two days later, on the “International Day of Women Judges,” our Supreme Court issued some woke tweets that one might expect to see from a far-left political party, not from the institution charged with upholding the rule of law by staying out of politics. Here is what the Court said on X on March 10, 2024:

“Canadians need to see themselves reflected in their judiciary because that builds trust in our democratic institutions. Achieving gender parity among judges at all levels in Canada is a step in the right direction towards having greater diversity on the bench. March 10, we celebrate International Day of Women Judges, which recognizes the importance of full and equal participation of women at all levels of the judiciary.”

Only some Canadians feel a “need” to “see themselves reflected in their judiciary,” and only some support “gender parity” and “greater diversity on the bench.” Most Canadians don’t care much – or at all – about the sex, ethnicity, religion, skin colour, sexual orientation or other personal characteristics of their judges. Most Canadians ask only that their judges take a long, hard and objective look at the evidence placed before them, and rule according to law without favouritism or bias.

Canadians who long for “greater diversity on the bench” are often the same Canadians who support mandatory hiring quotas to eradicate what they see as racism, sexism, homophobia, transphobia, Islamophobia and other forms of alleged systemic oppression. In contrast, other Canadians believe that over-representation or under-representation of a particular group is not necessarily due to bigotry or systemic oppression. Furthermore, hiring quotas put minority Canadians at risk of being viewed as a “diversity hire” even if they were the most qualified candidate.

Sadly, the Supreme Court expressed its opinion on political issues on which courts should not take sides.

In its tweet, the Supreme Court suggests that laws and policies that impose “greater diversity on the bench” will “build trust in our democratic institutions.” Au contraire, many Canadians oppose mandatory quotas because this policy can, and often does, inflict injustice on individuals who are the best-qualified for a job or position, but are not hired because they are the “wrong” gender or have the “wrong” skin colour.

The Supreme Court celebrates International Day of Women Judges for recognizing “the importance of full and equal participation of women at all levels of the judiciary.” Is our Court expressing its admiration for U.S. Supreme Court Justice Amy Coney Barrett, who joined the majority in Dobbs v. Jackson to overturn Roe v. Wade? I don’t know, but I doubt it. As Margaret Thatcher and countless other conservative women have noticed over the course of many decades, those who claim to want more women in positions of power and authority actually want only progressive women, not conservative women, to reach the upper echelons of society. A judge’s sex should be irrelevant. And if a judge’s sex is irrelevant, we should not seek to have more women, or fewer women, appointed to the bench.

Many Canadians have lost trust in their judiciary because they see it as becoming corrupted by woke ideology. Appointing judges who are seriously committed to protecting the Charter freedoms of expression, association, conscience, religion and peaceful assembly would do more to restore trust in the judiciary than striving for diversity quotas. In R. v. Oakes, the Supreme Court ruled that governments cannot violate our rights and freedoms unless governments produce “cogent and persuasive” evidence that meets a “stringent standard of justification.” Canadians need more judges who will apply this Oakes standard rigorously, by requiring governments to justify demonstrably, with compelling evidence, why a freedom-violating law is truly necessary and beneficial.

The Supreme Court’s tweet of March 10 is political commentary on political issues which should be left to Canadians to resolve with free debate in the public square, and at the ballot box. Issues that divide Canadians, such as whether the Freedom Convoy peaceful protest in Ottawa in 2022 was a good thing or a bad thing, to name only one example, are issues that no court and no judge should comment on.

Let’s hope the Supreme Court will do better in April.

John Carpay – The Epoch Times

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