The timing couldn’t have been more perfect: The Globe & Mail published an article decrying how Stephen Harper had been remaking the judiciary over the past many years, and then yesterday the Prime Minister announced the elevation of Justice Russ Brown of the Alberta Court of Appeal to the Supreme Court of Canada. (I should disclose that Justice Brown is a good friend of mine and a former colleague at the University of Alberta’s Faculty of Law.)
Over the next few days and then over the many coming years, undoubtedly Justice Brown will come under academic and journalistic scrutiny to see if his appointment fits a narrative that many on the left of academia and journalism like to paint.
The Globe article suggests a vast right-wing conspiracy whereby conservative operatives are spread all over the country hunting for the great judicial-conservative hope. Indeed, another article two days later was full of interviews with critics who wanted to change the judicial appointment system so that the (Conservative) government would have less discretion in the appointment of judges.
Of course, as long as the Liberal government, and for that matter the Mulroney PC government before that, were appointing left-wing liberals, these critics praised the amazing meritorious appointments that were being made to our nation’s courts. But once the nature of appointments started to become more conservative, all of a sudden the appointments were characterized as ideological and conspiratorial.
Even assuming that the federal Conservatives have been trawling the bottoms of the ideological oceans looking for the most conservative judicial candidate they could find, the question remains: Why hasn’t it made a difference in our legal culture? After all, seven of the nine Supreme Court justices have been appointed by this government, and yet much of this government’s contentious legislation has been struck down.
Even at the lower courts, regular lawyers will be hard pressed to see a real difference in the judging done by one party’s appointees or another. On one hand, this is a good thing. It points to a uniformity of Canadian legal thinking that has escaped the worst of American judicial grandstanding.
On the other hand, it points to a basic deficiency in Canadian conservative (and while we are at it, Libertarian) judicial philosophy, namely that there is none. For example, many conservatives would like judges to simply apply the law and not insert themselves into purely political matters.
Notwithstanding conservatives lament over the enactment of the Charter and the loss of Parliamentary sovereignty, conservatives have begun using the Charter to attack speech and spending suppressing election laws (as in Harper v. Canada, [2004] 1 S.C.R. 827,) and the state’s monopoly over healthcare (as in Chaoulli v. Quebec (Attorney General) [2005] 1 S.C.R. 791.) Conservatives attack Human Rights Commissions for suppressing offensive speech even though all such commissions are validly enacted by provincial and federal legislatures.
There is, therefore, a tension between the principle of Parliamentary sovereignty and the vindication of conservative values in general. Part of this tension stems from our obsession with American conservative constitutional discussions and forgetting the classic nineteenth century British legal traditions such as those of A.V. Dicey (who emphasized the concept of the “rule of law”.)
It would behoove conservatives to rediscover the lost British legal traditions that once permeated our legal discourse a century ago. (I say British, because in addition to the various English legal jurists, many Scottish legal scholars and jurists played a great role in developing Western legal traditions.)
This brings me back to Justice Brown. His tenure on the court will confound both critics on the left and right who will wish to box his judgments into easy to label categories. Will he be tough on crime? Will he defer to Parliament or will he insert his values into the law? Will he legislate from the bench? Will he let the living tree grow or will be an originalist? If those are the labels critics wish to use, then the answers will be both yes and no.
But if the questions are: Is he hard-working? Does he pay attention to the law? Does he bring an open-mind to each case? Does he listen to both sides of the case before making up his mind? Does he understand the “rule of law”? The answer to all of these questions is a resounding yes! And that makes him a Conservative in my books and in the books of Dicey.
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We can see how well that has worked out. Promote Dicey, damn Denning and you will not go too far wrong.
Furthermore, day care ensures that children never learn to bond with their families and become even more prone to peer influence…as if we need more of that!
There is no doubt that too many of Canada’s judges do not properly weigh evidence and interpret law. Too many can be bought and/or intimidated for profit. Police regularly perjure themselves and the judges know it. It’s a mess.
But from the decisions I’ve read, the proportion of judges who are corrupted and/or make partisan decisions to promote their own careers is greatest in the lower courts. Although one or another of the Supreme Court of Canada judges sometimes writes decisions that smack of partisanship or simple bad logic, they are few or fewer than in the lower courts. Sigh.
The beauty of Canada’s appeals courts and the Supreme Court is that no one judge makes the decisions. Certainly, there is authority in these courts. Judges take direction. But the higher the court, the more independently judges are able to act.
I think what some interpret as Supreme Court of Canada bias is really the tendency of the judges to interpret law, to the best of their ability, in the context of current human society. Locally and globally. Judges are mere humans, after all.
I expect of Judge Brown nothing less than to keep an open mind, to work hard, to weigh evidence fairly, to apply the best of his ability in logic and formal semantics to the interpretation and application of law, and to have the spine and conscience to think and act independently of any threats or bribes made to corrupt his judgement. It is what I expect of all judges, despite any partisan association they may enjoy. And that is not Conservative. It is integrity.
http://www.parl.gc.ca/About/Parliament/Education/OurCountryOurParliament/html_booklet/overview-canadian-parliamentary-system-e.html
“Three branches work together to govern Canada: the executive, legislative and judicial branches. The executive branch (also called the Government) is the decision-making branch, made up of the Monarch represented by the Governor General, the Prime Minister, and the Cabinet. The legislative branch is the law-making branch made up of the appointed Senate and the elected House of Commons. The judicial branch is a series of independent courts that interpret the laws passed by the other two branches.”
Activist judges, unelected, appointed individuals are acting as philosopher kings, as per the idealized utopian city-state born in Plato’s Republic, ruling over our country, have transformed and corrupted Canada’s Parliamentary System. The judicial tyranny at play in Canada is not hidden. Chief Justice Beverly McLachlin has such an understanding as declared so in her own words, “There is little point decrying the fact judges make law they do and they must.”
You hear that from her own lips in this trailer from the film, “Besieged – Democracy Under Attack”, produced by Charles McVety of the Institute for Canadian Values:
https://www.youtube.com/watch?v=mgScaIyRBN8&channel=WordTVMcVety
Again from the Overview of the Canadian Parliamentary, “The legislative branch is the law-making branch", contrary to McLachin’s imperious assertion: “There is little point decrying the fact judges make law they do and they must.” These justices should be required to take a basic civics class!
This usurpation of Parliament and democracy (“the secret of judicial law making, formally (coming) out of the closet”) has gone on far too long and must be stopped. The only way to overcome this distortion of our Parliamentary System is for the government to invoke the notwithstanding clause and finally thus put an end to the judicial tyranny and restore and re-establish the correct role for the three branches of Canada’s parliamentary system of government, namely, the executive, legislative and judicial branches.
I hope that Justice Brown is of the mind set that, “The judicial branch is a series of independent courts that interpret the laws passed by the other two branches.”
Either way is good for me!
My point being “WE” have to enact some TOUGH LOVE regarding these leaches…
Maybe not the death penalty but “they” need to fear the consequences of their actions.
As of now there are no REAL consequences for political corruption, and until that time comes “they” will continue to rape and pillage…
Just saying.
Not be appointed by the PM.
Same as the Senate.
ALL politicians are “lackeys” for each “other lackey” and can no longer be trusted in making the best decisions for the citizens…
IT’S ALL ABOUT THEMSELVES,
Definitely NOT US!
Time to bring back the noose…
Just saying.
It does not matter whether the judge is Conservative, Liberal, Libertarian, NDP, or anything else. The judgement must always be strictly by the law. Period.