the court with activists
Wednesday 25 August 2004
So much for Paul Martin's vaunted commitment to eliminating the
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
Columnist, The Edmonton Journal
Editorial Board Member, The National Post