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Some 25 years ago, when Ontario's soon-to-be-retired
Chief Justice Roy McMurtry was Ontario's attorney-general,
his first public reaction to then prime minister Pierre
Trudeau's Charter of Rights and Freedoms suggestion
was harsh. McMurtry, a practising lawyer before entering
politics, felt that Canada already enjoyed basic rights
and freedoms thanks to some 800 years of English common
law precedents. He told the story of police in Los Angeles
stopping a speeding car on an expressway only to find
the chopped-up body of the driver's wife in the trunk.
But because the man's U.S. constitutional rights were
violated - a court ruled the cops had no right and/or
no reason to search the trunk of the car - that evidence
was inadmissible and the man virtually got away with
murder.
Ah, how the worms turn.
Yet despite McMurtry's stated reservations
about a Charter, he played an active role in helping
to write the document which is just now approaching
its 25th anniversary. Then, having left electoral politics
- and being a sufficiently left-leaning Tory to satisfy
his good friend Jean Chretien - McMurtry was appointed
to the bench and quickly turned into exactly the kind
of Charter-centric judge he had originally warned the
world against. Not only that, he's proud of it.
'ACTIVIST JUDGES'
In a weekend Toronto Star interview,
the 75-year-old McMurtry dismisses those who say unelected
"activist judges" often usurp the powers of
elected representatives, saying, "much of the rhetoric
that comes from the right is exaggerated and overblown."
McMurtry added, "When you look at what has happened
since (the Charter), whenever legislation has been struck
down by the courts for not meeting the Charter test,
it has invariably been amended (by Parliament) without
undermining the original legislative intent."
This is simply not true. Just look at
two major issues - abortion and same-sex marriage -
where the courts not only over-rode elected representatives
but ruled against the express wishes of Parliament in
the case of abortion, and Parliament and nearly every
provincial Legislature in the case of same-sex marriage.
On abortion, Parliament had repeatedly
expressed its desire to have some restrictions, but
the Supreme Court, in its ultimate wisdom and/or arrogance,
"read in" its own version based not on what
politicians wanted, but on their own ideological bias.
As a result, Canada is the only country extant with
no abortion law whatsoever. Attempts to correct this
situation have met with absolute failure.
As for same-sex marriage, it was definitely
court-made law and McMurtry was one of the major players
as one of the authors of the original ruling legalizing
same-sex marriages, a ruling he says he was "pleased
to be part of." No doubt he was "pleased,"
since it positively affected the same-sex partnership
of his own daughter - which makes you wonder whether
he should have recused himself on this issue - and Toronto's
activist homosexual community hosted him and other judges
at a party to celebrate the occasion. Is this really
what judges should be doing?
Despite what McMurtry brazenly claims, the actions of
his court and other courts in this matter did not support
the original intent of either those who wrote the Charter,
McMurtry among them, or subsequent Parliaments and provincial
legislatures, all of which had voted on numerous occasions
to support the "traditional" view of marriage
- a union between a man and a woman.
ESTABLISHED VIEWS
So what does McMurtry say to those Canadians
who favour the traditional and established views of
society? Essentially, they're stupid. "I don't
think the traditional view or the majoritarian view
is the correct view," demonstrating here was based
on his personal belief system rather than the views
of our elected representatives. Anyway, what do they
know, since they obviously did not hold the "correct"
view on the matter.
McMurtry makes one valid point, saying
politicians could use the Charter's "notwithstanding"
clause to overrule court decisions.
Unfortunately, years of harping by critics - who, incredibly,
argue that using this clause by Parliament would be
"undemocratic," as if ideologically based
judicial fiats are somehow "democratic" -
has rendered the clause almost useless.
The main point, however, is that McMurtry's
decisions, and others like his, put the lie to the spurious
arguments that senior judges are beyond politics. The
only way they are beyond it, in fact, is that unlike
politicians, judges don't have to get elected. All they
have to do is suck up to a prime minister or premier
and it's jackpot time.
Which brings us to an interesting poll
published by the Globe and Mail last month showing that
63% of Canadians asked favour the idea of electing our
judges, a stark indicator that most Canadians are hardly
cheering on the current judicial lottery winners. Is
it any wonder? Just listen to them talk.
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