Judicial activists know no restraint

London Free Press - Canada ^ | Tuesday, January 16, 2007 | Rory Leishman

[GMMAC]

Judicial activists know no restraint

By Rory Leishman
London Free Press
Tuesday, January 16, 2007

In a classic 18th-century text, the Spirit of the Laws, Charles de Secondat, Baron de Montesquieu, pointed out that the separation of legislative and judicial powers is essential to freedom under law.

He wrote: "Were (the judicial power) joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator."

Sir William Blackstone likewise warned in his magisterial Commentaries on the Laws of England (1765-69): "Were (the judicial power) joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe."

Until recently, the great majority of Canadian judges agreed with Montesquieu and Blackstone. Instead of arbitrarily changing the law to conform with their ideas of what justice requires, they undertook to uphold the plain text of the laws and the Constitution of Canada as enacted and originally understood by elected representatives of the people in the legislative branch of government.

Judicial activists know no such restraint. They have no compunction about arbitrarily enacting their ideological preferences into law by unilaterally amending statute laws and the Constitution.

Consider in this respect the recent decision of the Ontario Court of Appeal in A.A. v B.B.. At issue in this case were two lesbian partners -- A.A. and C.C. -- and a man -- B.B. -- who had donated sperm so C.C. could give birth to a child.

According to court records, A.A. and C.C. began living together in 1990. By late 1999, A.A. had completed her law degree and C.C. had become a university professor, so they decided to start a family. They agreed that C.C. would be the birth mother and their mutual friend, B.B., a university professor with three children, would be the father.

The child of this union, D.D., refers to both A.A. and C.C. as "momma." B.B. visits D.D. twice a week. The birth mother, C.C., and the father, B.B., are the child's legal parents.

With the support of C.C. and B.B., A.A. petitioned the court for recognition as a third legal parent.

In a ruling on April 11, 2003, the trial judge, Justice David Aston of the Ontario Superior Court expressed sympathy for A.A.'s request. Having noted she is fully committed to a parental role for D.D., he said he was prepared to declare that she is a legal parent of the child "if there is jurisdiction to do so."

As it is, the Ontario Children's Law Reform Act plainly states that a child can have only two legal parents, either natural or adoptive. That settled the matter for Aston.

In his judgment, he wrote: "If a child can have three parents, why not four or six or a dozen? What about all the adults in a commune or a religious organization or sect?"

He added: "Polarized views exist concerning the definition of the modern family. Court decisions may sometimes necessarily impact on that debate, particularly where Charter considerations are engaged. However, when it comes to creating or shaping social policy, political considerations belong to the legislature."

A.A. appealed the ruling. In a unanimous judgment on Jan. 2, a three-judge panel of the Ontario Court of Appeal, including Chief Justice Roy McMurtry, conceded: "It is apparent that the (Children's Law Reform) Act contemplates only one mother and one father."

However, unlike Aston, McMurtry and his colleagues did not abide by the law: Instead, they presumed to change it to conform with their belief that it would be in the best interests of children such as D.D. to have three legal parents.

Do any of our elected representatives in the Ontario legislature object to this gross judicial violation of the separation of legislative and judicial powers under the Constitution of Canada?

Apparently not.

[GMMAC]

Also see these related 'Bench God' items on FR:

A straight line to polygamy

Teachers college violated rights of Iranian applicant: court

[GMMAC]

PING!

[subterfuge]

D.D. is going to be one screwed up kid, sadly.

Judges in Canada are just like the ones in the U.S.---untouchable.

[headsonpikes]

Black-clad socialist executioners placemarker.

[GMMAC]

"Judges in Canada are just like the ones in the U.S.---untouchable."

I usually use the 'un' descriptives "un-elected & unaccountable" when it comes to Kanuckistan's 'Bench Gods'.

Actually, our reality - rather than "just like" - is actually much worse than America's when it comes to these black robed dictators:

At no level in Canada are they elected and/or in any legitimate manner publicly vetted.
All are appointed by - usually personally by the head of - governments in power and, thus, the vast majority tend to be political hacks, failed candidates, etc.
Beyond that, they're selected from approved lists drawn up by the respective national or provincial lawyers' associations (read: 'unions') who've now effectively become a de facto criminal conspiracy against the general public with their subsequent conduct supposedly monitored by "Judicial Councils" overwhelmingly comprised of their similarly appointed brethren.

To me, the initial remedial step on both sides of the border should rightly be barring all lawyers from holding any elected public Office.
If being admitted "Officers of The Courts" doesn't amount to being in an open conflict of interest with respect to the Legislative & Executive Branches of Government, I can't imagine whatever else might.

[subterfuge]

You make some excellent points.

"Kanuckistan's 'Bench Gods'. You're funny too!

[goldstategop]

In the old days when parliamentary supremacy was Canadian principle, no judge would dare to set aside the law for his own interpretation of it. Today Canada's judges are free to substitute their judgments for that of Parliament and the provincial assemblies.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

[GMMAC]

Likewise in America when Judges once exhibited both due respect for her magnificent Constitution and faithfully obeyed their proper role as defined under it.

While there may have been isolated instances where, especially U.S. Supreme Court, Justices had to hold their noses to uphold bad laws, the system worked because their doing so coupled with related public outrage rightfully compelled Congress to redress such wrongs through remedial legislation.

Doubtless, this can be a time consuming process but one which definitely beats the Hell out of Judges selfishly & arrogantly presuming to know better than the Founders by inventing imagined 'rights' which they never included or even remotely intended to include within the Constitution. (Exhibit A: Roe v. Wade)

Not unlike our own liberal hypocrites, yours love to piously claim to respect the rule of law & the Constitution as it was originally written provided they're getting whatever they want (and usually can't get at the ballot box) but, the minute either bite them on the a$$, it's always then time for 'long overdue true reform'. (e.g. strident demands to scrap the Electoral College back in 2000)

[Fair Go]

Judicial activism is the great threat to democracy. The other great threat to democracy is the surrender of power to international organisations such as the UN. Am I wrong in assuming that Canada's Charter of Rights paved the way for judicial activism? How much say did the Canadian people have in adopting the Charter of Rights? In c1974, Australia had a referendum on whether we should have a Bill of Rights. The referendum was defeated. However, civil rigts are well protected by legislation. The great benefit of the legislative approach is that it is the work of elected representatives and can adapt to changing circumstances and restore balance.

[GMMAC]

"Am I wrong in assuming that Canada's Charter of Rights paved the way for judicial activism?"

Nope - it's like a damned blank cheque for same and/or an effective 'kick me' sign hung on the nation's collective rump for the black-robed dictators' benefit.

"How much say did the Canadian people have in adopting the Charter of Rights??"

Effectively none - it was a veritable 'legal' coup d'etat by the Court Party.