Judicial Activism
Evita
Thursday, October 12 and called: JUDGING THE JUDGES.
"Is there such a thing as "judicial activism"? Retired supreme
court justice John Major, former Chief Justice of Nova Scotia Constance
Glube, and University of Alberta law professor Sanjeev Anand weigh the
evidence in a Calgary forum"
Someone should have reminded the two judges that "Actions speak
louder than words". Thanks to the Internet, we Plebeians now have
access to case law without having to go to a Law Library. We also can
post our response for everyone to see even if the CBC would wish to
keep it out of sight.
Allow me to begin by quoting Voltaire:
· "Let all laws be uniform and precise. To interpret laws is almost
always to corrupt them"
Having listened to the spin by the honourable, or maybe not so
honourable, former judges, it was hard to decide if one should laugh or
cry.
It is a travesty to call these people "justices". It is telling
that until they stopped delivering justice these professionals were
called judges. When they replaced justice with judgements, they, very
cynically, took the title "justice".
The National Judicial Institute
<http://scc.lexum.umontreal.ca/en/1999/1999rcs1-420/1999rcs1-420.html>
is responsible for the continuing education of Canadian judges.
However, if the track record of those who are in charge of the
curricula is anything to go by, "ideological indoctrination" would
be closer to the truth.
One of the mandatory courses for judges across the world is "gender
sensitivity". This is one of Canada's most successful exports across
the globe, including the U.S. Constance Glube is one of the instructors
at the NJI.
Canadian activist judges are the main missionaries who spread the
gospel across the world. The retired Supreme Court judge Claire
L'Heureux-Dubé is the principal ambassador at large, actively
supported by the current chief judge, Beverly McLachlin and her
coterie.
It would have been hilarious to listen to Constance Glube declare that
we have no judicial activism in Canada if the results were not so
tragic. However, without a pause, she then gave us a glimpse to her own
activist interpretation of the Charter and equality.
She claimed that "interpretation" cannot be interpreted to be
"personal bias". I challenge her to show me one person who has
"interpreted" anything that would not be in accordance with her or
his personal beliefs and biases. That is the very reason why the
function of a judge is to apply law, not to make or interpret it.
Anyone who has read even one of Glube's rulings knows that her
interpretation about "equality", or "equity" and Charter rights
is very strange, to say the least. Suffice to mention two cases which
succinctly sum up her understanding of the Charter and equality/equity.
In Fancy v. Sheppard she ruled that mutual dependency between
cohabiting partners is demeaning to a woman and denies her basic human
rights, but that being dependent on a former husband to whom she did
not contribute anything in return, is not.
In this case a woman who was receiving spousal support under a
separation agreement, which was registered under the Nova Scotia Family
Maintenance Act, had remarried. That statute stipulates that the right
to spousal maintenance is forfeited where the recipient "remarries or
lives with another person as husband and wife."
Judge Glube ruled that this violates both s. 7 and 15 of the Charter.
According to the learned judge, in order to preserve the woman's
independence and self respect, her former husband had to continue to
pay her spousal support though she had remarried. The baffling part of
the reasoning is that, according to the judge, "the right to marry or
cohabit is rooted in fundamental concepts of human dignity, privacy
[and]... personal autonomy, and accordingly are aspects of both liberty
and security of the person and protected by s. 7." She considered that
the statutory provision was a restraint on the woman's right to
remarry or cohabit. Logically, that reasoning would apply to the man
who was ordered to pay support.
The Court also ruled that this legislative provision was based on
"stereotypical" discriminatory assumptions about female dependency and
hence violated s. 15 of the Charter. The judge mused that while the
remarriage of a recipient is a legitimate factor for a court to
consider on a support variation application, it should not be an
absolute bar to support.
Activism? You bet. This is only one of a multitude of similar cases.
There is a presumptive mutual dependency and responsibility between
cohabiting couples. Therefore, it cannot be seen to be an expression of
a "stereotypically discriminatory assumption of female dependency" if a
woman is supported by her male partner while she cohabits with him. The
stereotypical dependency comes only when a woman depends on support
from someone with whom she no longer has a mutually supportive
relationship. If nothing else, the female partner is assumed to provide
companionship, comfort and a warm bed in exchange for financial support
by the male partner as long as the relationship lasts, even if she does
not wash his socks. Divorce is grated only when the intimate
relationship between the parties has ended. To order the intimate male
partner to support her even after the relationship is over is
tantamount to reducing all divorced and separated women to prostitutes
with a pension, especially if view this ruling in the context that "a
support obligation may nonetheless arise from the marriage relationship
itself." (Bracklow v. Bracklow
<http://scc.lexum.umontreal.ca/en/1999/1999rcs1-420/1999rcs1-420.html>)
The warm bed comes to mind.
Clearly, Constance Glube denied the former husband's Charter rights
when she handed a windfall to the woman who now could claim support
from (at least) two men.
In Wedsworth v. Wedsworth
(http://www.canlii.org/ns/cas/nsca/2000/2000nsca108.html) Glube
accepted that the husband was clearly in no position to pay the support
demanded of him, but as his new wife was earning some income as a
waitress her earnings should be channeled, even if indirectly, to the
former wife. Thus not only does judge Glube deny men their Charter
right but she also discriminates between women, based on their social
status.
It is truly frightening that the National Judicial Institute trusts
this woman to train new judges.In Leskun v. Leskun the Supreme judges
of Canada ordered a man to continue with his spousal support payment to
his wife who claimed that she was so shattered by his infidelity that
she was incapable of earning a living, though eminently qualified. This
decision has proven to be a windfall to many more women.
· "Misconduct, as such, is off the table as a relevant
consideration," wrote Justice Ian Binnie in the judgment, citing clear
provisions in the 1985 Divorce Act.
Of course not. How else would judges be able to order men to continue
to support their former wives and their (the wives') children even if
it was proven that the children were conceived in an extramarital
relationship and are not the support payers' biological offspring.
Often the biological fathers, if known, are also ordered to pay child
support. In many cases the women and their children are already being
support by the women's new partners.
This ruling continues the standard practice that allows judges to
exercise their gender activism in a manner that men always lose and
women always win, no matter what the facts.
In Bracklow v. Braclow our Chief Judge, Beverly McLachlin, waxed on
"mutual support":
· 1 What duty does a healthy spouse
owe a sick one when the marriage collapses? It is now well-settled law
that spouses must compensate each other for foregone careers and missed
opportunities during the marriage upon the breakdown of their union.
But what happens when a divorce -- through no consequence of
sacrifices, but simply through economic hardship -- leaves one former
spouse self-sufficient and the other, perhaps due to the onset of a
debilitating illness, incapable of self-support? Must the healthy
spouse continue to support the sick spouse? Or can he or she move on,
free of obligation? That is the question posed by this appeal. It
is a difficult issue. It is also an important issue, given the trend
in our society toward shorter marriages and successive relationships.
However, I have yet see a case where a healthy wife would have been
ordered to support her disabled husband after she divorced him. On the
other hand, I have read hundreds of decisions where the disabled former
husband has been ordered to pay support to his former wife who already
is in a new relationship and who presumably is being supported by her
new partner. You will find some examples on my post called "Child and
Spousal Support. Some Case Law Examples."
The activist mantra that we hear in almost every divorce and child
support case is that women are "depressed" and thus cannot become
self sufficient, no matter how highly qualified they may be to earn a
living. On the other hand, if men, for a reason or another, cannot earn
what their former wives claim that they are capable of earning, the
judges impute them unrealistically high, non-exciting salaries. Men are
not allowed to be "intentionally" unemployed or underemployed. A
judge can order them to seek employment in any category if they cannot
find work in their own field of expertise. A man can never, ever, claim
physical inability or depression as an excuse for not paying support.
If truly incapacitated, his disability pension is confiscated.
Suicide is universally accepted to be the manifestation of despair that
finds no other outlet. Though Health Canada and its affiliates choose
to ignore the epidemic of male depression, often leading to suicide,
other nations are beginning to shed some light on these tragedies.
In Canada, suicide is the leading cause of death for men aged 25-29 and
40-44 and for women aged 30-34 and the second leading cause of death
for both males and females aged 10-24. [Source: Mishara. "Suicide
Section of Intentional Injuries Background Paper. [Listening for
Directions on Injury"]
Dr. Augustine J. Kposowa, University of California at Riverside,
examined the link between suicide and marital status using data on
nearly 472,000 men and women included in the National longitudinal
mortality study. 545 of these individuals committed suicide 1979-1989.
'Men were nearly 4.8 (the gap is increasing each year) times as likely
to commit suicide as women,' he wrote in March 15th 2000 (54:254-261)
issue of the Journal of Epidemiology and Community Health.
Dr. Kposowa elaborated further: "Divorced or separated men are more
than twice as likely to kill themselves as men who remain married. The
link between divorce and suicide in men holds true even after adjusting
for other factors associated with suicide risk, including age, income
and level of education. Race is also a factor, with 50 percent more
white than black men committing suicide.
For women a marital split is not a significant risk factor for suicide
whereas age is a stronger factor than marital status. The suicide rates
were higher for women over 65."
In a comprehensive Australian study of 4,000 suicides P.J.M. Baume, et
al. found that 70% of adult male suicides were preceded by a
relationship break-up. Chris Cantor, one of co-authors of the study
said: "It seems highly likely that most suicide problems associated
with separated men may relate to child access problems."
A study of 13 European countries by the regional European office of the
World Health Organization found that divorce was the only factor linked
with suicide in every one of the 13 countries. The study showed that
factors like poverty, unemployment, and disability were associated with
divorce in some of the countries but that disruption of the family was
the only factor linked with divorce in all 13.
My own son is one of these statistics.
Though the Elizabeth Fry Society makes an attempt to portray female
offenders as victims rather than perpetrators, available research does
not support that claim. In fact, Correctional Service of Canada (CSC)
itself documents in its various publications that approximately 20% of
female inmates, and more than 50% of male inmates have suffered abuse
as children. As the research on spousal abuse is a highly contested
subject, it is best left alone in this context.
This leads to some obscure judgements as in R. v. Lewis
(http://www.canlii.org/on/cas/onca/2000/2000onca281.html) at the
Ontario Court of Appeal where the judges reasoned that though a man and
a woman had committed the same crime together the woman deserved a
shorter sentence because her previous sentences had been shorter than
those of the man. Thus, using the same logic, if they will continue to
commit crimes together, she will again be treated more leniently as she
had a string of shorter sentences. Incredulously, the judges also
commented that she expressed "remorse", whereas he did not, during
the trial. Sure, and the moon is made of cheese.
Based on the judicial training by such activists as Constance Glube,
these fallacies are presented as facts. Thus, women routinely receive
shorter and more lenient sentences than men (see
http://www.csc-scc.gc.ca/text/pblct/forum/e06/061d_e.pdf ). The
majority of women offenders serving a federal sentence have committed a
Schedule 1 offence (156 or 44%), yet the proportion of women offenders
in the community (about 59%) is consistently greater than the
proportion of women incarcerated (about 41%)
The different treatments accorded to Karla Homolka and Paul Bernardo
are a prime example of the prevailing bias. Yet, Karla did not come
from an abusive background, Paul did.
In Dec. 2005, at the Victoria University, N.Z., Beverly McLachlin
declared that "The rule of law requires judges to uphold unwritten
constitutional norms, even in the face of clearly enacted laws or
hostile public opinion"
No matter how hard I tried, I could not find such rule of law. Maybe it
is in the same book as the "Rule of the Thumb", cited by Bertha
Wilson, which I also have not been able to find? But, then again, her
Supreme Honour believes that, ahem, if a judge does not agree with the
rule of law, all that she needs to do is to interpret it which ever way
takes her fancy.
Her mentor, Claire L'Heureux-Dubé, clarified: "It is not an agenda.
It's a perception of what the law is...." [in: "Gatecrashing the old
boys club" by Kirk Makin [and] Graeme Smith. The Globe and Mail (May 2,
2002
One year earlier (Monday, November 1, 2004) McLachlin declared that
"Strong and independent judicial institutions ensure that
governmental power is exercised in accordance with the law ..."
[Supreme Court of Canada - Remarks of the Right Honourable Beverley
McLachlin, P.C. 2nd International Conference on the Training of the
Judiciary] "In accordance with the law" and "interpreting law"
are fundamentally opposite dogmas.
True to her character, she made an instantaneous 180 degree turn:
"But ... [j]ustice must also be delivered in a manner ... that takes
account of the social context, and the different perspectives of those
who seek it".
Maybe, we should ask Madame Chief Judge to be kind enough to explain if
she rules according to law or to the "different perspectives"?
In Section IV. "Gender Equality Analysis in Research and
Statistics" of their guide to Gender Equality Analysis, Justice
Canada specifies how the above is to be implemented:
· In posing the question "How will the outcomes of this research
positively benefit or negatively impact on women?", the researcher can
make sure the question is raised, but it is the formulation of the
policy that will determine the impact ...
· ... make a careful choice about which indicators are going to be
applied, because you want the indicators to reflect the gendered
approach you are developing ... The integration of gender equality
analysis into the research and evaluation work of the Department
implies a departure from traditional research methodology. It does not
start with a premise of neutrality, nor limit its investigation to sex
disaggregated data. A gender research approach begins with women's
experience as they see it. Both quantitative and qualitative
information sources are required. (See Appendix G for a list of sources
of statistical information.)
· Step 3: Developing Messages. For example, you may develop two
different information brochures on domestic violence: one relating to
victims, largely women, and one relating to abusers, largely men.
Thus, even the Ministry of Justice has an activist agenda as, by their
definition and contrary to documented facts, no woman can be seen to be
a perpetrator, or instigator, of family violence, and no man can be
seen to be a victim.
For more on this see a copy of my article from my previous incarnation
as the editor of the original "nojustice.info", saved by a reader
at
<http://www.divorcesource.com/ubbthreads/printthread.php?Board=mens&main=4435&type=post
>
See also my "Activist Supreme Justices"
http://www.fathersforlife.org/Sodhi/remarks_McLachlin1.htm
CanLII is replete of examples of rulings that are delivered by activist
judges. For example, see Swanson v. Swanson
<http://www.canlii.org/on/cas/onsc/2004/2004onsc13039.html> and Ulsifer
v. Ulsifer <http://www.canlii.org/ab/cas/abqb/2002/2002abqb333.html>
No wonder that John Major, whose major claim to fame was to toe the
line set by his gender activist colleagues, steered clear of the
singular field of Canadian judicial activism.