LILLEY: Ford right to point out activist judges have 'broken' justice system

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Did you know that there is a charter right in Canada to a protected, separated bike lane? If you’ve read the Canadian Charter of Rights and Freedoms, you might be surprised that you missed this right, so clearly spelled out in the charter.

Or if you live a reality-based existence, you will conclude that an activist judge recently made all of this up to use his position on the bench to push his personal political agenda.

Justice Paul Schabas recently found in favour of the applicants who had asked the court to stop the Ford government from removing certain bike lanes in Toronto. Sure, the government had promised to remove the bike lanes that were a source of controversy. And sure, the bike lane issue was debated in the election, which Ford and his PC party won, but democracy isn’t determined by voters in an election, it is determined by unelected, unaccountable and untouchable activist judges like Schabas.

Schabas was appointed to the bench in 2019 by the Justin Trudeau government after a long career of being a left-leaning activist lawyer, something he was quite proud of, as the longtime lawyer for the Toronto Star.

In August 2023, Schabas was the lead in a decision of the Ontario Superior Court of Justice ruling against Dr. Jordan Peterson. That ruling claimed Peterson’s charter right to freedom of expression was not infringed upon by being disciplined by the College of Psychologists of Ontario for his public comments on social media.

The college not only disciplined Peterson for comments that political activists found objectionable, but they also ordered him to undergo social media training to correct his ways. When he appealed to the court that this infringed his charter rights, Schabas couldn’t find section 2B of the charter, which guarantees freedom of expression.

Now, though, Schabas has interpreted section 7 of the Charter, which guarantees “life, liberty and security of the person,” as meaning bike lanes are protected by the charter.

“We get elected to move forward and some judge because of their ideology decides, well, let’s put an injunction on bike lanes. You’ve got to be kidding me. The system is broken,” Premier Doug Ford said last week in a passionate rant.

“Every judge in this country has been politically appointed.”

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It’s good to hear the premier saying the quiet part out loud.

We like to pretend that judges in this country are not political at all when nothing could be further from the truth. Judges are appointed by politicians who look for people who share their judicial outlook.

Schabas was appointed by David Lametti, who was Trudeau’s justice minister at the time. Lametti, a former legal academic, is now a senior adviser to Prime Minister Mark Carney, a man he’s known since their university days.

If Schabas didn’t share their legal and judicial view, he wouldn’t have been appointed.

These judges and academics like Lametti seek each other out and support each other. In granting his injunction on bike lanes, Schabas cited a recent injunction decision by Justice John Callaghan. In a decision just released in March, Callaghan granted an injunction against the Ford government’s decision to stop drug injection sites from operating within 200 metres of schools and childcare centres.

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Callaghan, like Schabas, was appointed by Lametti. Both have delivered activist rulings of late that invent charter rights to bike lanes and being able to shoot heroin and fentanyl into your arm within proximity of a school.

“Why do we have elections if every single decision we make you can get an injunction or throw it to the courts?” Ford asked last week.

There has been a lot of handwringing over provincial governments using or looking to use the notwithstanding clause of the charter to overrule radical rulings from the courts. Some see this as going too far; in reality, it is a response to judges going too far, overstepping their bounds and thinking they should have the final say in all public policy matters.

If they want to make the kinds of decisions they are making, justices like Schabas and Callaghan should resign their seats on the bench and seek a seat in the legislature.

Otherwise, they should stick to their non-bike lane.