The Supreme Court of Canada ventures into politics

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The Supreme Court of Canada ventures into politics

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Thus far, March has been an eyebrow-raising month for the Supreme Court of Canada.

On March 8, 2024, in the sexual assault case of R. v. Kruk, no fewer than five Supreme Court Justices endorsed the opinion of Justice Sheilah Martin, who at one point in her judgment referred to a woman as “a person with a vagina,” and then uses the word “they” rather than “she” to describe a woman.

Lest there be any doubt that this was not some accidental slip of the pen, Justice Martin wrote: “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 penile‑vaginal penetration because people generally, even if intoxicated, are not mistaken about that sensation.”

At trial and on appeal, lawyers for Mr. Kruk argued that the complainant was so intoxicated that her ability to perceive and interpret what was happening to her was impaired, and that the high volume of alcohol that she had consumed affected her balance, coordination, judgment, perception, memory, and ability to process information.

At trial, the judge explained the primary reason for finding the accused guilty as follows: “It is extremely unlikely that a woman would be mistaken about that feeling.”

The B.C. Court of Appeal ruled that the trial judge fell into error by engaging in speculative reasoning that was not grounded in the evidence, and ordered a new trial. The Supreme Court of Canada restored the trial judgment and convicted Mr. Kruk.

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.

I have reviewed the trial, B.C. Court of Appeal, and Supreme Court of Canada reasoning in this case, which centres on the circumstances and criteria that may allow a court to rely on generalizations rather than on specific findings of fact in a particular case. Perhaps the trial judge should have said “this woman” rather than “a woman.” Still, it remains entirely unclear why the court would, after using the word “woman” dozens of times, suddenly write “a person with a vagina” and then refer to a woman as “they” rather than “she.”

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 left-wing 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 social media platform 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 in 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 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.

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