The Supremes - No Liberal Bias Here

From Norman Spector
Chretien's stacked the deck When he named the latest Supreme Court judge last week, the PM gave it a federalist, socially liberal shape for a decade to come
17 August 2002 in The Globe and Mail

Some commentators noted that the relatively young Madam Justice Deschamps, as she will be known for the next 25 years, was Mr. Chretien's fifth appointee to the Supreme Court -- which means he's now named the majority of the judges. Others explained that the new justice was filling the legally guaranteed third Quebec seat.
What no one pointed out is that four of those nine judges who were already on the court were born, raised and completed university in Quebec ; Judge Deschamps brings that total to five. Now four of the nine are francophones (Louise Arbour, Charles Gonthier, Louis LeBel and Judge Deschamps) and one is English-speaking (Ian Binnie).

With Judge Deschamps's appointment, the majority of the judges on the Supreme Court of Canada now come from one of our provinces. And Quebec 's population today accounts for less than a quarter of the Canadian total.

Or regarding Justice Michel Bastarache

"Mr. Justice Michel Bastarache, one of Chretien’s six appointees to the court, wrote the decision. His appointment aroused some controversy, since by convention the Atlantic seat on the Supreme Court is rotated among the four eastern provinces. Like the judge he replaced, Bastarache is from New Brunswick. While his legal credentials were unimpressive, he did have strong Liberal connections and had been an ally of Chretien in past language and constitutional wars."

Or From Colby Cosh - May 21, 2004 National Post

"On Tuesday a 6-3 majority of the Supreme Court upheld the federal Liberals’ harsh new election spending limits on "third parties," by which is meant, basically, human beings who aren’t running for office. It’s a remarkable moment. Leave aside the question of whether the new Elections Act is good or bad on its own merits, and consider the history.

In 1982, the country was persuaded to adopt an American-style charter of individual rights and freedoms that would empower our judiciary to strike down laws willy-nilly in the manner of the U.S. Supreme Court. It’s a power that has fortified the Supreme Court’s national and international prestige. It has made it an equal partner with, and some would say the distinct superior of, our elected Parliament. The Court has used the Charter with childlike enthusiasm to force governments to abandon or reinterpret countless laws, regulations and social policies.

But when asked to apply the Charter to the issue of election spending limits in the case of Harper v. Canada, the Court discovered a contradiction between a certain concept of "electoral fairness," found nowhere in the Constitution, and the individual free-expression rights clearly described as "fundamental" in section 2 of the Charter.

So what happened when the fundamental rights collided with this idea of "fairness"? They crumpled like a Chevette hit by a freight train.

Obviously, it’s time to move beyond the debate between those of us who would like to see the text of the Charter enforced and those who loathe the revolutionary manner of the Charter’s adoption. The Supreme Court isn’t even pretending to make decisions based on the Charter anymore. This isn’t "judicial activism," it’s judicial whacktivism.

Reading the decision in Harper is a fascinating journey into the bizarre mental universe of the Canadian judge. By way of example, let’s return to that "electoral fairness" thing. This is a phrase that could be interpreted all sorts of ways. The Court majority, subscribing to the judgment written by Justice Michel Bastarache, contemplated two.

There’s the "libertarian model" of electoral fairness whereby the "electoral process [is] subject to as few restrictions as possible." Everybody is permitted as much free speech as they can afford, without limits: ideas fight for approval in a unfettered marketplace. There is also an "egalitarian model" of fairness in which the "overarching objective … is to promote electoral fairness by creating equality in the political discourse." In this model, political speech is deemed a zero-sum game: "the State can restrict the voices which dominate the political discourse so that others may be heard as well."

The Liberals’ new Elections Act reflects the theory of the "egalitarian model" by essentially outlawing political advertising during elections by anyone but political parties. A philosopher’s mind — as opposed to a judge’s — might wonder whether giving political parties a monopoly on election speech fits even this egalitarian definition of "fairness." But Justice Bastarache’s decision:

a) arbitrarily declared the egalitarian model part of the formal ideology of the Canadian state, even though the Charter is premised on the opposing principle;

b) decreed, without investigating the matter too closely, that the amended Elections Act does conform to the egalitarian model;

c) decided that the Elections Act, since "fairness" is an urgent and rational objective of the state, can overpower section 2 of the Charter (i.e., your sacred natural rights) with complete impunity.

Five other judges — our best and brightest — subscribed to this wad of fiat in apparent contentment. Thus the thing is settled in perpetuity.

This all merely confirms that the Charter, whether good or bad in itself, is a filthy lie. It advertises itself as the basic law of the land, yet when more than half the Supreme Court decides that something explicitly contrary to it would be a capital idea, the document’s text evaporates. "Fundamental" freedoms become provisional, negotiable, disposable. The notion of "an egalitarian model of electoral fairness" appears, let me emphasize, nowhere in the Charter. Believe it or not, the Court pulled those theoretical wheezings about "egalitarian" fairness out of a half-baked and much-contested 1992 Royal Commission report on election spending.

Somehow, the judges thought that implementing this dusty shred of bumf was more important than applying the stated essence of the Constitution. Seems odd to me, but I never went to law school or suffered a major head trauma.

I haven’t begun to sum up the Harper ruling’s noxiousness here. One astonishing utterance from the Honourable Mr. Justice Bastarache will, I think, long be remembered: "While the right to political expression lies at the core of the guarantee of free expression and warrants a high degree of constitutional protection, there is nevertheless a danger that political advertising may manipulate or oppress the voter."

The theory here, in case you couldn’t believe your eyes, is that hearing a particular political opinion too often might "oppress" the electorate. To minimize the risk of such "oppression," the Supreme Court is prepared to allow Elections Canada sweeping new powers to register, monitor and outlaw the political speech of private citizens and organizations during federal campaigns.

Which leaves us with just one question: When, exactly, did they make Joseph Stalin a Father of Confederation?

Source: Western Standard, May 18, 2004 and This Canada, May 22, 2004