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Monday, August 30, 2004

Canada's Kangaroo Court

For the last 20 years, Toronto's super achieving Judge Rosalie Abbela has twisted arms in the Women's Caucus of the Liberal Party, the down-town Toronto artsy establishment, Prime Minister Paul Martin's Earnscliffe Strategy Group. Object - a seat on the Supreme Court of Canada. On Tuesday Justice Minister Irwin Cotler phoned Abbela, "Rosie, you're in, congratulations ... ". The aging Rosalie handed out of photos of herself (taken twenty years ago) and a resume of her rise from poor immigrant to Supreme Court Puisne (pronounced "puny") Judge. Someday Quebec may try to secede from Canada. The Supreme Court will be embroiled in that issue. When does Judge Abbela think Quebec can leave Canada? The CRTC wants to shut down radio station CHOI-FM. The Supreme Court will deal with that case next year. How important is freedom of expression, Judge Abbela? B.C. wants to drill for oil off its coasts. The federal government may try to stop the drilling. Who, in your opinion, Judge Abella owns B.C.'s offshore oil? Before Judge Abella sits in the Supreme Court, shouldn't we know?

In the U.S., the government can not appoint a Supreme Court Judge before the U.S. Senate has publicly questioned the judge and approved her. The Senators don't pull any punches. Readers may recall the Senate hearings on Robert Bork (the Senate turned him down) and Clarence Thomas (after a heated debate, the Senate approved). As the Eye Opener has said before, Canada is not a real democracy (see our comparison of the Canadian and U.S. systems of government). The prime minister chooses judges; the Canadian parliament has absolutely no say in the matter.

Said Prime Minister Paul Martin Jr. during the May/June election campaign:

"Canada's democratic deficit is a disgrace ... after the June 28 election I will share the power of choosing Supreme Court judges with parliament."
Martin didn't keep his promise. Last Tuesday, Martin appointed Abella and Louise Charron to the Supreme Court, next day brought together a jerrybuilt "screening" committee of MPs and lawyers. Martin gave the committee no information about Abella or Charron, didn't let the committee question the Judges, gave the committee only three hours to ask Justice Minister Irwin Cotler why he had appointed the judges. "And don't get personal about the judges," warned Cotler. "If you do we'll get like the Americans - we'll scare off good judges."

Joe Comartin, the NDP Justice critic called the committee "a sham".

Would a parliamentary hearing scare off good judges? How do American and Canadian Supreme Court Judges compare? Some of America's best lawyers have sat on the U.S. Supreme Court:

  • John Marshall
  • Oliver Wendell Holmes
  • Louis D. Brandeis
  • William Howard Taft (a former American President)
  • Charles E. Hughes
  • Hugo L. Black
  • Felix Frankfurter
  • William O. Douglas
  • Earl Warren (he was the author of Brown v. the Board of Education the case that freed U.S. blacks from segregation)
. What about Canada's Supreme Court?
  • Sir Lyman Duff? Canadian legal historians have called Duff "one of the greatest jurists in Canadian legal history ... " In fact, Duff was a drunk, a Brit-loving xenophobe, a committed protestant Ontarian and a snob. If Duff is what the Canadian system produces, let's go to the American system.
  • Since Duff retired in 1944 our Supreme Court has produced no Marshall, Holmes, Warren.

How does Canadian justice compare to Canadian justice? "Equal Justice under Law" proclaims the inviting entrance to the U.S. Supreme Court. Judges, dressed in simple brown robes, listen respectfully to parties seated in front of them.

"Shake in your boots, all ye who enter here" the Supreme Court of Canada's isolated, imposing Chateau style facade seems to warn he or she who would seek justice there. Inside, Canada's Supreme Court judges don black robes, legal neckpieces (tabs) and wing collars, sometimes swath themselves in heavy red, trimmed Santa Claus looking outfits trimmed in leg-hold-trapped ermine (an expensive breed of mink). Lawyers sport black robes and tabs, bow their heads, must always call the judges "My Lord" or "My Lady".

Lower courts have aped the Supreme Court. Calgarian George Daly went to court recently. Wrote he, in a letter to the Calgary Herald on Monday:

"To anyone who is required to appear in court, for any reason, courts are halls of terror. There is nothing friendly, hospitable, heart-warming or reassuring about any courthouse I've entered. They are constructed to convey the impression of being hallowed ground, and proceedings reinforce that impression."
American judges speak simply; judge on the basis of common sense and a confidence in American values; avoid long, complicated judgments. Chief Justice Warren took only four pages to rid America of segregation in Brown v. Board of Education (click here to read Chief Justice Warren's judgment) . Here's what U.S. Supreme Court judges Oliver Wendell Holmes and Felix Frankfurter said about freedom of expression:
"If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought - not free thought only for those who agree with us, but freedom for the thought we hate." - Oliver Wendell Holmes Jr.
"The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely this is to burn the house to roast the pig...The incidence of this enactment is to reduce the adult population...to only reading what is fit for children." - Felix Frankfurter

Canadian lawyers rate judges not by common sense and devotion to Canadian values but by the number of pages of their judgments, the number of tangled webs spun into their arguments and the number of legal cases quoted. In Miglin v. Miglin Judge Abella (then with the Ontario Court of Appeal) plodded on for 24 virtually unreadable pages to find that a matrimonial separation agreement wasn't worth the paper it was written on. Here are examples of Abella's bafflegab:

"There is no doubt that one of the central objectives in the trilogy was to reinforce the rights of the parties to finalize their arrangements by agreement. But it is also true that the prevailing support theories underlying the trilogy were the clean break theory as the ultimate support objective and the state as the ultimate provider. These theories, woven together with the finality objective, led logically to a highly stringent threshold for variation - hence the requirement of a radical change in circumstance causally connected to the marriage ... That said, I acknowledge that the reference to agreements together with orders in s.15.2(4) is not determinative of the legislature's intention to impose identical thresholds for variation. It goes without saying, however, that when the Act was amended in 1985, it was - and remains - open to the legislature to limit the vulnerability of agreements from judicial variation by requiring deference to their terms ... " .
Later the Supreme Court of Canada used up 60 more pages to reverse Abella. (click here to read the Supreme Court judgment) .

Canadian lawyers spend hours puzzling over Abbela-like judgments. Non-lawyers have given up trying to understand them.



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