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CHIEF JUSTICE MAKES A GRAB FOR MORE POWER

Chief Justice Beverley McLachlin of the Supreme Court of Canada was in Wellington, New Zealand at the end of November, when she gave an astonishing speech to the law students at the University of Wellington. According to this speech, the Chief Justice is of the belief that judges, upon their appointment to the Bench, acquire such wisdom and knowledge that they are able to determine with certainty what is best for all Canadians.

This conclusion is based on the fact that Judge McLachlin asserted in her speech that judges can render their opinions based on "unwritten" Constitutional norms, even in the face of clearly enacted laws or hostile public opinion. She defined her unwritten norms as those "essential to a nation's history, identity, values and legal systems". Such norms, according to Judge McLachlin, can only be properly understood and interpreted by appointed judges.

She bases this claim on the premise that there exist fundamental norms of justice so basic that they form part of the legal structure that must be upheld by the courts, even though they are not written into the law. She cited, as an example, the need to protect people from a government which believes in torture or denies citizens a fair trial. No one disputes that these policies are not acceptable and should not be implemented. That is, there is a consensus among reasonable people that a civilized society must provide citizens with basic protections. However, the Chief Justice went on to say in her speech that the courts must also support the "dignity of human beings" and honour rights to prevent "discrimination" on the basis of gender, race, and religion. "Human dignity", however, is a vague term that means different things to different people, as does the word "discrimination". These are concepts in fact, on which there are no necessarily established consensus or "norms".

However, Judge McLachlin believes that only judges know how to accurately interpret these unwritten concepts. She skirts around the problem that these concepts have a wide variety of interpretations by stating that judges can look to guidelines provided by international treaties and commitments for direction in interpreting them. This ignores however, the profoundly significant fact that Canada's international commitments i.e. treaties, are determined solely at the discretion and whim of the Prime Minister. They are not debated or approved by Parliament, and in no way can they be recognized as a reflection of Canadian "values". These are the values of the government in power - yes - but not necessarily those of its citizens. A court, appointed by the government looking to these treaties for guidance is merely making an arbitrary decision, based on policies determined by that elitist government that has by-passed the democratic process. What a cozy arrangement.

Justice McLachlin also claims that judges have a legitimate role to play in determining "unwritten" laws because she argues that judges have a "judicial conscience" which is founded on the judges' "sworn commitment to uphold the rule of law". We beg to differ. This argument overlooks the fact that most Canadian judges are sitting on the Bench because of their politics, not because of any specific legal merit on their part. Moreover, they are using their appointment to change society, according to their own personal perspective. (See "Supreme Court Swings and Knocks Out Decency p.4).

The Truth About Judicial Appointments

Judges in Canada are appointed because they or their law firms have paid large sums of money to the party in power, or, alternately, these judges have personally worked diligently to service the party. This was made clear in the Gomery hearings, which disclosed that lawyers in Quebec were handsomely rewarded with judicial appointments for supporting the Liberal party. This practice, however, is not limited to appointments in Quebec, but occurs right across the Canada. (See Reality July/August, 2005 "The Squalor of Our Judicial Appointments", p.5).

For those who believe that this analysis is too critical of the judicial appointment process, it should be noted that, in the two years that Paul Martin and his Minister of Justice, Irwin Cotler were in power, the following individuals were appointed to the Bench:

Michael Brown, Mr. Cotler's executive assistant and policy advisor;
Yves de Montigny, Mr. Cotler's Chief of Staff;
Randall Echlin, the Legal Counsel to the Ontario Liberal Party;
Rosalie Abella, appointed to the Supreme Court of Canada. She is wife of Mr. Cotler's friend, Irving Abella. Both Mr. Cotler and Mr. Abella are former Presidents of the Canadian Jewish Congress;
Marsha Erb, Alberta Liberal fundraiser, a close personal friend of Cotler's Cabinet colleague, Anne McLellan;
John J. Gill, Co-chair of the 2004 Alberta federal Liberal campaign;
Vital Ouellette, an unsuccessful Alberta provincial Liberal candidate in 1997 and 2000 elections;
Bryan Mahoney, Liberal candidate who lost twice to federal Conservative MP Myron Thompson;
Edmond Blanchard, former Liberal New Brunswick Minister of Finance.

To put it simply, judges in Canada lack legitimacy because they are merely political appointees, selected at the personal discretion of the Prime Minister, based on political considerations rather than on any consideration of merit. As such, judges do not have "legitimacy". Moreover, the judges' decisions in many cases make it all too obvious that they are not "upholding the rule of law" in any way.

Supreme Court has Seized Power

It is no secret that Justice McLachlin and her court have seized every opportunity to extend their grasp of power. The assertions made in her New Zealand speech is another attempt by her and her colleagues to further their control. For example, in the same-sex marriage reference case, handed down December 9, 2004, the Supreme Court of Canada declared our Constitution was not "frozen" but was a "living tree". In practical terms, the "living tree" philosophy hands the courts a large and liberal or progressive opportunity to interpret the cases as broadly as they wish, based not on the law, but rather on their own ideology or philosophy. That is, the "living tree" concept of our constitution places judges squarely in charge of determining cases by way of adapting the law according to their own personal perspectives rather than by way of legal principles and precedents. These judges will continue to do so unless or until they are forcibly stopped.

Judges Want No Restraints on their Power

Judge McLachlin's speech makes it clear that she and her judicial colleagues want no restraints placed on them, politically, legally or morally. Quite frankly, they enjoy their power. They deliberately ignore the fact that our system of government requires a clear separation of the legislative, executive and judicial branches, each acting within its own sphere of influence. Instead, we are now experiencing a judicial leap-frog over the legislative and executive branches of government by judges to make them the unquestionable final authority in this country. Judge McLachlin's specious arguments to justify this grab for power, as set out in her November speech in New Zealand, only serves to make this objective patently obvious..
In this context, Mr. Martin's recent enthusiasm for removing the Notwithstanding Clause (s.33) from the Charter was deeply disturbing. Section 33 stands as one small finger in the dike against the deluge of judicial power grabbing.

House of Justice Committee Reviews Appointment Process

Recently retired from the Nova Scotia Court of Appeal, Madam Justice, Constance Glube, appeared before the House of Commons Justice Committee, which was reviewing judicial appointments, on November 15, 2005. She stated in her testimony, that the judicial appointment system must be changed because these appointments are based not on merit, but rather on political considerations. This marked the first time that a chief justice in Canada has publicly challenged the appointment system of judges. She gave, as an example of an inappropriate appointment, a "very serious incident" in 1998 which related to the Liberal Justice Minister of the day, Anne McLellan, appointing Liberal party organizer and fundraiser Heather Robertson to the Nova Scotia Supreme Court. Madam Justice Glube put the situation very politely, but, she has publicly acknowledged the problem. Madam Justice Glube, by the way, was one of Canada's more competent judges, as she has consistently based her decisions on the rule of law and legal precedent, rather than on her own personal ideology. Her retirement is a loss to Canada's judicial system.

Madam Justice Roberston, by the way was enraged that the political strings she had pulled for her appointment had been publicly exposed. She demanded a public apology for "this unforgivable attack on a sitting judge." No apology was given. (Lawyers Weekly, January 20, 2006)

Recommendations of the Justice Committee

The House of Commons Committee, which conducted the groundbreaking brainstorming for reforms to the federal judicial appointment process, announced on November 28, 2005 (three hours before the Liberal government fell on a vote of non-confidence), that it had arrived at a "consensus" for reform. Representatives of the four parties sitting on this committee recommended that judicial vacancies be advertised, and that judicial candidates be interviewed and that some form of short list be provided in order to prevent the ruling party from so blatantly favouring its own partisans for the bench.

The interim report of the Committee also recommended that MPs resume study of judicial appointment reform as a priority in the new 39th Parliament, to be formed after the January 23, 2006 federal election.

Reform to our system of judicial appointments can't come soon enough.

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