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WHO WILL FILL THE VACANCY ON THE SUPREME COURT OF CANADA?

There are few positions as important to Canadians as that of a judge on the Supreme Court of Canada. The expansive reach that these judges have given to themselves under the pretext that they are merely interpreting the Charter is a scandal. These judges' decisions are delving into all aspects of our personal lives: the disciplining of our children; determining what is permissible to teach our children; what we may say or do publicly about our religious beliefs; overturning the traditional definition of marriage, etc.

That is why the vacancy on the Supreme Court of Canada occurring in June as a result of the resignation of Madam Justice Louise Arbour is of such significance. This is especially the case because the Supreme Court of Canada will be hearing arguments on the same-sex marriage Reference on October 6th, 7th and 8th. The decision of this case will have profound implications for Canadian society.

We already know, however, from previous decisions by the Supreme Court that the Court is very sympathetic to homosexual legal challenges. However, there are a few judges on that Court who perhaps could be persuaded that Parliament, and not their appointed, unaccountable selves, should be making this crucial decision.

When Madam Justice Louise Arbour announced her pending resignation, Prime Minister Martin was presented with a sizeable headache. He had previously promised to allow some form of parliamentary input for Supreme Court appointments - which he had hoped would not take place until 2006 when Mr. Justice Jack Major of Alberta reaches 75 years of age and retires from the Court.

Faced with this immediate vacancy, Mr. Martin at first agreed to some form of parliamentary review of the appointment - as he had promised - but stated that the final decision will still rest where it always has been, in the Prime Minister's office. It is uncertain, however, exactly how any such review would be carried out since the Prime Minister has several options as to how to proceed. Anything, however, is an improvement over the present process by which the appointments are made behind closed doors. Unfortunately though, we can be assured that any parliamentary committee reviewing the candidates will be packed with obliging Liberal MPs who will carry out the review "as instructed" by the Minister of Justice and the Prime Minister's office. Nonetheless, even a limited pro forma review will at least give the public some knowledge of the nominee.

However, at the time of this writing, there is a strong possibility that a federal election may be called as early as April. If so, according to the Lawyers Weekly (March 5, 2004), Justice Minister Irwin Cotler has stated that a spring election means that there will not be time to initiate a new appointment process, and that the government will have to go in accordance with the appointment process that is already in effect - i.e. an appointment at the sole discretion of the Prime Minister.

Mr. Cotler did say, however, that if the election is delayed until the fall, then a Parliamentary review process could be put in place by June or July.

Even this tiny effort of opening up the process was too much for the Canadian Bar Association. Its President, Bill Johnson, spluttered that a parliamentary review of an appointment would make the process "too politicized." Instead, the Association has recommended a committee of "elites," such as lawyers and judges, plus a few citizens (politically selected, of course) discretely consider the names submitted by the Prime Minister. The committee would then put forward those it recommends. The real reason behind the alarm of the Canadian Bar Association over the possibility of a new appointment process is that the Association has had a long, happy history over the years of its executives (especially its presidents) receiving appointments to the senior appeal courts across the country. The secretive appointment process of the past has worked so well for the Bar Association that any change to the process is frightening to it and its ambitious executives. (The possibility of receiving a judicial appointment is one of the reasons why so many ambitious lawyers devote so much of their time and energy to the Association - it is a good career move.)

Who will be the next appointment to the Supreme Court?

Mr. Martin will be facing considerable pressure to replace Madam Justice Louise Arbour by another woman. Why? Judges are supposed to represent all Canadians, not a feminist special interest group. A female judge cannot represent the "female" point of view on the Court for the simple reason that women, just like men, do not have a common perspective. Rather, the views or perspectives of women are widely varied in accordance with their differing social, economic, educational, cultural and religious, etc. backgrounds. It is insulting to the intelligence and independence of women to suggest that a member of the Court should be appointed on the basis of her female gender. The appointment should be solely based on the nominee's merits, the issue of gender being absolutely irrelevant.

The replacement of Madam Justice Louise Arbour must come from Ontario, and in all likelihood from one of the 22 judges on the Ontario Court of Appeal. The latter court has developed a deserved reputation for its unorthodox decisions based not on the law, logic, reason, or common sense, but on the personal views of its liberal judges. Decriminalizing marijuana, same-sex marriage, reducing the age of consent for anal intercourse - all have come from the wild imaginations of the Ontario Court of Appeal judges in recent years.

One of the worst offenders in this regard is Madam Justice Rosalie Abella, who has shown herself incapable of thinking outside of the feminist, ultra liberal box. Women's supremacy over men is central to her family law decisions; lowering the age of consent for homosexual adolescents so as not to deny them their "sexuality," and equal benefits for homosexual partners are just some of her decisions. Other female possibilities for the appointment are just as bad: Madam Justice Louise Charron (marijuana decriminalization), Madam Justice Karen Weiler (women's bare breasts are legal as a matter of equality), and Madam Justice Eileen Gillese (same-sex marriage). Some of the male judges are equally disturbing, as many of them are as adept as the women judges in imposing their liberal views on Canadians under the guise of equality rights in the Charter. Mr. Justice "Spouse in the House" John Laskin (son of former Supreme Court Justice Bora Laskin) ruled that women should continue to receive welfare payments even though living with an employed common-law partner, because women should be independent and have money of their own and not be required to rely on the male partner. (Just rely on the taxpayer?) Another candidate is Mr. Justice Stephen Goudge, who when sitting on the then Ontario Superior Court, ruled in favour of same-sex marriage. Mr. Justice Goudge is a long-time Liberal "fixer" and fundraiser - who better to sit on the Supreme Court of Canada?

The "powers that be" might also look beyond the Ontario Court of Appeal to some other leading feminist lawyers ready and willing to take up the flag on behalf of the sisterhood.

Appointments of judges pushing their own ideologies is undermining self-government and the rule of law. The vast majority of thoughtful Canadian men and women do not wish to see this crucial appointment made on the grounds of gender, race or ideology. Rather, the vacancy should be filled by the appointment of the person best qualified to fill the position; that is, a person with integrity, experience, balanced judgement and willingness to be impartial. Such qualifications are especially important since the advent of the Charter of Rights, which has resulted in Supreme Court judges becoming among the most powerful public figures in Canada.

Please write to:

The Right Hon. Paul Martin, PC, MP
Prime Minister of Canada
Langevin Building
80 Wellington Street
Ottawa, ON K1A 0A2
Fax: (613) 992-4211
E-mail: Martin.P@parl.gc.ca

The Hon. Irwin Cotler, PC, MP
Minister of Justice and Attorney General of Canada
Justice Canada
East Memorial Building
4th Floor, 284 Wellington Street
Ottawa, ON K1A 0H8
Fax: (613) 992-4621
E-mail: Cotler.I@parl.gc.ca

Please request that the forthcoming appointment to the Supreme Court of Canada not be based on gender, but rather on merit and that the nominee be impartial and unbiased.

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