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Convenient Judges for Liberal Aims

Appeared in the Calgary Herald, 27 August 2004
Release Date: August 27, 2004
This week’s stealth appointment of two new judges to the Supreme Court of Canada draws sharp attention to the severity of Canada’s democratic deficit.

On Tuesday Justice Minister Irwin Cotler nominated Ontario Court of Appeal Justices Louise Charron and Rosalie Abella to Canada’s Supreme Court. On Wednesday, a committee of seven MPs and two legal experts were allowed to ask questions, not of Charron and Abella themselves, only of Cotler. Then, given just Thursday to deliberate and draft a report on the “choices” before them, this committee must submit its advice to the prime minister today.

Of course, the nominations would stand regardless of questions asked, or the committee’s recommendations, said Cotler. In other words, the whole process was a public relations ploy, to give a cloak of legitimacy to the naked power exercised by the prime minister.

While Cotler claims this limited scrutiny of the nominees was to avoid politicizing the appointment process, the Supreme Court voting record reveals just how political these decisions already are: judges are deeply divided on both philosophical and ideological grounds.

Consider the records of the two retiring judges. Justice Louise Arbour was arguably the most liberal, activist judge on the court, with Justice Frank Iacobucci not far behind her. In the 2002 Gossellin case, Arbour suggested governments must actively provide Canadians with a minimum level of social assistance. According to her, government budgetary concerns couldn’t justify limiting the constitutional right to welfare.

Iacobucci’s majority opinion in the 1998 Vriend case discovered a new right in the Alberta Human Rights Act, even though it had been considered and rejected by the provincial legislature: a textbook case of judicial legislation. He had also previously argued (in the 1995 Egan case) that financial constraints were no excuse for not extending pension benefits to same-sex couples. Such judgments give courts a dangerous “power of the purse” never intended for the unelected, unaccountable judicial branch.

Canadians will find out soon enough what to expect from their replacements. Over the next five months the Supreme Court will hear cases that could change the legal definition of marriage, discover a constitutional right to welfare, and entrench the federal provision of maternity leave benefits.

The Liberal government has been accused of hiding behind the courts on the controversial matter of same sex marriage since deciding not to appeal a 1998 Ontario court decision that extended tax-funded pension benefits same sex couples. Whether or not the new appointments are part of a strategy of avoiding responsibility for which they were elected, it is relevant that both Charron and Abella have issued judgments extending the benefits associated with marriage to same sex couples.

The author of the Ontario decision, not incidentally, was none other than Abella, who has argued in favour of using the courts as agent of social change: “While elected governments may wait for changing attitudes in order to preserve public confidence and credibility,” courts should serve as the vanguard.

It was also Abella who, as author of the 1984 Report of the Royal Commission on Equality in Employment, coined the term “employment equity.” She has a fluid view of rights: “Rights are a work in progress, but there can be no progress without the courts.”

The problem is, rights can mean different things to different people, and to different judges. Abella, for instance, distinguishes between civil liberties, “a concept of rights that requires the state not to interfere with our liberties,” and human rights, which “cannot be realized without the state’s intervention.” She adamantly favors the latter.

Considering the social and economic costs of state intervention, Canadians have every right to know this. Aged 53 and 58 respectively, Charron and Abella are guaranteed their spots on Canada’s top court until they hit mandatory retirement at age 75. They could entrench its activist course for years to come.

As Abella has herself noted, “every decision-maker who walks into a court room to hear a case is armed not only with the relevant legal text, but with a set of values, experiences and assumptions that are thoroughly embedded.”

Too bad for Canadians that she was not allowed to explain her own.