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Stacking the court with activists


Stacking the court with activists

Wednesday 25 August 2004
Page: A18

So much for Paul Martin's vaunted commitment to eliminating the democratic deficit.

The announcement on Tuesday that Mr. Martin's government would be appointing two activist judges to the Supreme Court flies in the face of the Prime Minister's assertions, made frequently over the past year, that he intends to restore power to Parliament.

What difference will it make now whether he gives backbench MPs more say in lawmaking? Who cares if he returns to the House of Commons the authority to set our national agenda, confiscated in dribs, drabs and occasional enormous gulps by the PMO since the days of John Diefenbaker?

None of the laws Parliament makes will be safe from judicial demolition once the PM's two nominees -- Ontario Court of Appeal Justices Rosalie Abella and Louise Charron -- make it to the highest court.

Not that many were safe before this latest pair were elevated.

A court that already had a reliable 6-3 majority in favour of judge-made law will now likely vote 7-2 or even 8-1 for whatever fashionable lefty cause is being advocated.

In an outrageous speech in 2000, Madam Justice Abella explained that activist judges, far from subverting the democratic will of the people, were actually democracy's greatest defenders. "The judiciary has a different relationship with the public," Judge Abella said. "It is accountable less to the public's opinions and more to the public interest." Message: You peons may think you know what you want. But we judges know what is truly in your best interests.

The Abella and Charron appointments are already being hailed as proof a new era in democratic accountability is dawning. After all, their appointments will not become final until after a Commons committee has had a chance to question Justice Minister Irwin Cotler about them. But this new "review process" is hollow: Opposition MPs will have a chance to grill Mr. Cotler publicly about the nominees, but they will be given no opportunity to question the nominees themselves. Nor will they have the power to reject the candidates.

What is the point? Opposition MPs will ask the Justice Minister whether this or that decision or public statement from a nominee's past betrays a bias that impinges her ability to adjudicate impartially on this or that high-profile issue; and Mr. Cotler will defer by saying he cannot know what is in either judge's mind, but he is sure that each woman will give her objective attention to whatever cases come before the court.

Expect a lot of this, for instance:

Opposition MP: "Mr. Cotler, when she was a justice of the Ontario Court of Appeal, Madam Justice Abella tried to argue that judges had an obligation to reopen divorce and separation settlements when they determined that support payments were 'inappropriately low,' but that since there was no such thing as a court-ordered payment that was 'inappropriately high,' there was no legal basis for reopening settlements in which the payer felt his burden was too great.

"Since 95% of payers are men and 95% of the payees are women, Mr. Cotler, do you not think such logical gymnastics betray a dangerous anti-male bias on Ms. Abella's part?"

Mr. Cotler: "With all due respect to the honourable member, I am in no position to divine what was or was not in the respected judge's mind when she made that ruling. But I wish to reassure the member that ..."

In 1994, Eric Miglin and his wife Linda signed a "full-and-final" separation settlement, under which Mrs. Miglin received the couple's home, $60,000 a year in child support and $15,000 in consulting fees from Mr. Miglin's company. Mrs. Miglin acknowledged that "no pattern of economic dependency has been established in their marriage," that "the implications of not claiming [spousal] support have been explained to her by her solicitor"; and she agreed that "at no time now or in the future" would she seek support for herself, "regardless of the circumstances."

Yet five years later, when Mrs. Miglin went to court to reopen the couple's settlement, Justice Abella turned this clear contract on its head and awarded her $4,000 a month in support payments, claiming that "often, dependent spouses are in unequal bargaining positions [and] may misapprehend his or her needs after separation and be unaware of the real cost of post-separation life."

Now there's an anti-male bias you could stand a spoon up in.

Judge Abella is also known for her staunch support of racial and gender hiring quotas, her pro-labour bias in workplace issues and her crusades on behalf of trendy issues. And Justice Charron wrote the decision in the M. v. H. case that forced nearly 60 Ontario laws to be rewritten to include spousal benefits for gay and lesbian couples.

Paul Martin, once thought to be the Liberals' Great Right Hope, has produced what will likely be the most activist, left-wing court in Canadian history.

Lorne Gunter
Columnist, The Edmonton Journal
Editorial Board Member, The National Post

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Posted 2004 08 25