July 28, 2015

Sean Fine's obsession with Harper's judges ignores Liberals' long history of political appointments

Brian LilleyArchive

I don’t mind journalists having opinions and expressing them but I think when you do that consistently, you are essentially a columnist or commentator and you should identify as such and not claim to be a simple reporter.

That’s one of my many problems with The Globe and Mail and their “justice writer” Sean Fine.

I don’t know Mr. Fine, I don’t think I’ve ever even bumped into him at the many Supreme Court briefings and decisions that I’ve covered but he writes about justice and the courts for The Globe which primarily means he writes stories attacking Stephen Harper’s court picks or his justice legislation.

For the past several days Fine has been writing about Harper’s attempts to make over the courts in his own image. Fine, and the many liberals and red tories he quotes are outraged that a sitting prime minister, in power for 10 years, would dare to appoint judges that share his legal outlook. Here is a sample of Fine’s writing, imagine with a minor key soundtrack, the kind they play when the bad guy approaches.

“In the course of this transformation, entire categories of potential candidates, such as criminal defence lawyers, have been neglected; prosecutors and business attorneys have been favoured. So cumbersome is the system of political scrutiny that vacancies hit record-high levels last year. And sometimes, critics say, judges and politicians, even cabinet ministers, have come into close contact in the appointment process, raising questions about neutrality and fairness.”

I’ve got plenty of examples from the past of Liberals making the courts in their image but let me point out something. There is nothing in the rules of appointing judges that the Conservatives have broken. Something Fine begrudgingly acknowledges before again, doing what he can to make Stephen Harper sound bad.

“The rules in the appointments system are few, and all previous governments have used the bench to reward party faithful. But Mr. Harper is the first Prime Minister to be a critic of the Charter, and early on he told Parliament that he wanted to choose judges who would support his crackdown on crime.”

Oh…..see that, a critic of the Charter. Guess what Mr. Fine, plenty of Canadians are critics of the Charter. It was not handed down from on high, it is not an infallible document. It was written by humans and has plenty of problems. Which is why the judges you favour, the ones that make bold, meaning activists decisions to read into the Charter that which was not there.

The courts have time and again changed what the Charter means, isn’t that a form of criticism of the original document? I would say so but Mr. Fine won’t see it that way because those bold decisions fit with his politics, his unspoken but plain to see progressive worldview.

Meanwhile he writes story after story on the evil Harper appointments of judges that believe the courts should read the Charter and the laws they rule on based on the words before them and their original meaning and intent, rather than the living tree doctrine that sees everything change over time.

Here is how he described the appointment of Justice Bradley Miller to the Ontario Court of Appeal.

“Justice Miller is the court’s second adherent of a legal doctrine known as “originalism,” a view associated with conservative judges Antonin Scalia and Clarence Thomas of the U.S. Supreme Court, which says constitutions should be interpreted according to how their founders intended.”

That was from June, now after obsessing about Justice Miller for a time Fine is now obsessed with another Harper appointee, Justice John Rooke of Alberta, the kind of judge that believes Parliament and not courts make the law.

Fine even found a way to paint in the same way about the latest appointment to the Supreme Court named just this week – Justice Russ Brown from Alberta whom Fine describes as a “conservative judge.” He may have described other judges as Liberal but I do not recall ever reading that. Again, those would be the judges he likes, the ones he wants to see appointed to the court.

I am under no illusion that our courts, at all levels, are incredibly political. Of course the political and world view of the judge you appear before affects how they interpret the law.

But when you read people like Fine and those in the media that criticize Harper and his court appointments you would be led to believe that the PM is at war with the courts, that he has broken away from a tradition that simply saw the best legal minds appointed and nothing else.

I’m going to show you how false that is going back into history and up to recent appointments just before Stephen Harper took over as Prime Minister.

Did you know that Sir Wilfrid Laurier, Liberal hero, man on the five dollar bill appointed his Justice Minister to the Supreme Court in 1906? In fact he did more than that, Laurier appointed Fitzpatrick straight from the cabinet table to the position of Chief Justice. Louis St. Laurent, another Liberal prime minister appointed his finance minister Douglas Abbott to the Supreme Court in 1954.

In 1973 Pierre Trudeau caused a stir among jurists and legal watchers when he appointed Bora Laskin as Chief Justice of the Supreme Court. Tradition said that when the Chief Justice retired the next most senior justice to the job but Trudeau went to Laskin, the second most junior judge because he liked Laskin’s progressive politics and world view. At that point passing over the next most senior judge had only happened twice before – in 1906 with Laurier and in 1924, under MacKenzie King, another Liberal.

Speaking of Liberals seeking out judges for their politics, did you know that Paul Martin Sr. personally sought out Justice Ivan Rand to settle the Ford Strike in Windsor in 1946 because he liked the Supreme Court justice’s union friendly stance? That resulted in what is known as the Rand Formula, a decision we still live with today on how union dues are to be collected. Politics and judges meeting….hmmm, I thought just Stephen Harper did that.

More recently we can look to Jean Chretien’s Supreme Court appointments, can anyone argue that Chretien didn’t seek out judges that fit his left leaning view? Of course he did and as prime minister it was his right to do so.

But when you see names like Louise Arbour and Morris Fish you know that they were picked, at least in part because of their very Liberal stances. Those stances were known before the appointments. Same with their politics.

Arbour had lots of experience as a lawyer but not as a judge when she got tapped and Fish, well I’m not sure he ever met a criminal he didn’t want to give the benefit of the doubt to.

Paul Martin had just two appointments, Rosalie Abella and Louise Charron, both accomplished lawyers and judges but also both liberal.

I’ve told you about the media party campaign against the Conservatives before, it has been going on since before Stephen Harper ever took office and it will go on long after he is gone. This latest series by Fine would be welcomed if it were balanced, in my view it is not. To me it is part of the ongoing media push to paint Harper and the Conservatives in a negative light at every turn.

As with most things that come from the media party, don’t believe the hype, do some homework and you will likely find that the truth is something very different than you have been told.


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commented 2015-07-29 02:46:55 -0400
Hoping and praying for a Harper majority!
commented 2015-07-29 01:35:48 -0400
Ron Voss, we need a Conservative Majority but certainly glad to hear that it can be done.
commented 2015-07-28 19:32:12 -0400
At the Parliament of Canada web site one finds this Overview of the Canadian Parliamentary System:
“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 her 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:
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 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.
commented 2015-07-28 19:21:29 -0400
“The good news is that these nazi pigs will split the vote and Harper will ride off with another majority”

I agree, lets hope sooooo.
commented 2015-07-28 17:24:25 -0400
“The good news is that these nazi pigs will split the vote and Harper will ride off with another majority. "

Let’s hope so!
commented 2015-07-28 17:14:02 -0400
When the SCOC blocked Marc Nadon through a squawk from the liberals/ndp, Harper appointed liberal fav (ex heenan blaikie and liberal firm where pete troodo was partner) clement gascon. This appointment was faxed in while Harper was in europe – the nazi pig liberals and enn-dee-pee said nothing because they got their nazi pig alliance on the SCOC.

So this time around, Harper does the same, but the nazi pig MSM and nazi pig enn-dee-pee/liberals have an issue – these nazi pigs are the most unpredictable turds.

The good news is that these nazi pigs will split the vote and Harper will ride off with another majority.
commented 2015-07-28 17:03:59 -0400
It certainly would be nice to get some conservative representation in the courts since it does not seem possible to get judges that rule based solely o the law, yet these conservative appointments seem like they are more likely to rule based upon the law passed by the parliament rather than upon their own political biases.

Why is it that you cannot find any left leaning judges that will rule solely on the basis of the written law, but you can find conservative judges who will?

In any case, it does not in any way surprise me that the left-leaning media cries foul when Harper appoints a conservative judge but is all okay when a Liberal PM appoints a left leaning judge. The hypocrisy is palpable, it is so thick you can cut it with a knife.