Stacking the court with activists

by Lorne Gunter

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 and Edit Bd Member,

National Post

Columnist, Edmonton Journal

Tele: (780) 916-0719

E-mail: lgunter@shaw.ca

Fax: (780) 481-4735

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